Intellectual Property and Computer Software, A Battle of Competing Use and Access Visions for Countries of the South
by Alan Story
UNCTAD-ICTSD Project on IPRs and Sustainable Development Series • Issue Paper 10
This report was commissioned to examine a range of economic, political and developmental issues connected with the use and expansion of computer software in countries of the South. In particular, it examines the wider conceptual, economic and intellectual property law implications and practical consequences of the two main software formats: the still predominant proprietary format, best exemplified by the operating and application programs of Microsoft Corp. and the increasingly important open source and free software formats, grouped under the acronym, FLOSS (Free/Libre/Open Source Software) The main question it attempts to analyse and answer is this: both in the short- and long-term, which format best meets the need of the less industrialised countries of the South? The principal conclusion drawn is that, for a wide range of reasons, free and open source software is the preferred alterative for countries of the South.
This report is aimed at the layperson who does not have a sophisticated background in computing and avoids the use of technical computer language whenever possible; indeed, the report was written with a non-technical (and non legally-trained) audience in mind. An Appendix provides definitions and simple explanations of seven key computing terms.
Section 1 provides a brief introduction to the entire report and the issues raised in its six sections. It gives an overview of the growing ‘software war’ between the two formats and their proponents, provides some financial statistics on the global sales (and licensing) of computer software, and argues that software issues are too important to be left exclusively to software companies or software programmers.
The next three sections give an explanatory orientation to the heart of this report, which is found in Section 5. Section 2 provides a brief introduction to the two main types of software and their characteristics; it focuses on their contrasting approaches to the protection and use of the source code, the internal programming language of software. Section 3 examines the three main branches of intellectual property law — copyright, patents, and trade secrets — that are implicated in the legal protection (and restriction) of software. The legal history of these regimes vis à vis software is briefly outlined, as are the legal requirements for protection mandated by the Agreement on Trade-Related Aspects of Intellectual Property Rights 1997 (TRIPS Agreement). This section commences with a short contextualisation of how legal rights, such as intellectual property rights, should be understood, particularly their contingency. Section 4 attempts to give a contemporary ‘snapshot’ of some of the leading — as well as more typical — FLOSS projects and developments across ten countries of the South, including China, India, Thailand, South Africa, Uganda, Namibia, Lebanon, Mexico, Brazil and Peru; although the future of FLOSS developments in these and similar countries is hardly assured, there have been a number of path-breaking advances.
The heart of this report is found in Section 5. Six inter-linked issues are analysed; they include: software costs and licensing, computer hardware requirements for the two competing software types, technology transfer and software (a key question for the future economic growth of the South), whether the South should mimic legal developments, particularly in the United States, that permit the patenting of software and whether software patenting assists or hinders software innovation, which form of software format creates the best employment opportunities in the South, and a long section on unauthorised software copying (often misleadingly called ‘software piracy’). Again, the analytical framework used is a comparison of the two formats; the conclusions from a number of leading studies and anecdotal evidence are presented and assessed.
The final part, Section 6, highlights a few of the critical issues that will impact on the use and further spread of software across the South; in particular, it emphasises, to quote from one recent study, that which software is employed is not merely a matter of mere ‘product choice’ and that free and open source software “reflects more fundamentally an alternative strategy for the building, maintaining and changing the rules that govern information flows in the economy.”