Open source—Is it an alternative to intellectual property?

• Author: Narendran Thiruthy
• Date: 01 March 2017
• Published date: 01 March 2017
• DOI: http://doi.org/10.1111/jwip.12074

DOI: 10.1111/jwip.12074

NOTE

Open source—Is it an alternative to intellectual

property?

Narendran Thiruthy

Inter University Centre for IPR Studies, Kochi,

Kerala, India

Correspondence

Narendran Thiruthy, Inter University Centre

for IPR Studies, Kochi, Kerala, India.

Email: narendranthiruthy@gmail.com

The open source production model is being articulated as an

alternative to the contemporary intellectual property model,

which uses property rights as instruments of exclusion and,

consequently, guarantees a market monopoly. The open source

movement initially originated as a creators’response to the

extensive use of intellectual property law to protect the source

code of computer programs. Even though the movement began

modestly, open source has now become a practicing business

model. The efficiency of the open source production model in

coordinating collaborative creativity and in providing concrete

results is a proven fact in the software industry. The uniqueness of

this model lies in its facilitation of a distinctive use of property to

build an environment, that is more conducive to collaborative

production. Many theorists argue that open source has now

emerged as a workable alternative to current intellectual property

law, and that it resolves the many challenges intellectual property

law has posed in terms of access and creativity management. This

note attempts to explore the property jurisprudence and social

relationships in open source and critically examines how

successful the open source model is in emerging as an alternative

to intellectual property.

KEYWORDS

intellectual property rights jurisprudence, open source

software, property rights

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INTRODUCTION

The idea of accelerating indu strial innovations by providing propert y rights as an incentive has demonstrated so me

positive results. Private prop erty rights act as exclusive rights from which their holders c an benefit and profit. As

exclusivity is fundamental to the concept of private prop erty, the intellectual prop erty right model allows its

owners to guard their innovati ons with enclosures. This cau ses issues in accessing, using an d improving such

© 2017 The Author. The Journal of World Intellectual Property © 2017 John Wiley & Sons Ltd

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wileyonlinelibrary.com/journal/jwip J World Intellect Prop. 2017;20:68–86.

creations (Boldrin & Levine, 2008; Stallman, 2002). Some theorists argue that this exclusivity also causes an

unreasonable restraint on an individual’s ability to use and enjoy such creations (Levy, 2001).

Open source is being articulated as an alternative to the intellectual property model to handle creativity. In open

source, a community of individuals makes contributions to a body of knowledge, sets up peer-review systems for

quality control and then nurtures and nourishes that body of knowledge (Benkler, 2002, p. 381). Open source works

through a unique licensing system that treats the “creation”as property and determines the way in which it can be

used and enjoyed. Open Source license creates a relationship between the creator and the user, which is distinct from

the way in which contemporary intellectual property right models are used to promote creativity. The distinction of

open source licensing is in its ability to use property as an institution to build an environment with lesser restrictions on

access and use. Some writers propagate the view that open source’s goals are antithetical to intellectual property

ideals, and that the two are in continuous conflict

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(Wayner, 2000).

In the intellectual property model, software development is linked with the existence of an owner who controls

the software’s production and use. Richard Stallman, who is a champion of the open source movement, criticizes the

intellectual property model by asserting that software should be free and that programmers should be motivated by

enhanced reputation and community good, rather than by remuneration or profit. Halbert (2003) opines that open

source is an alternative to the intellectual property model as it is based upon a set of fundamentally different

principles: First, the building blocks, that is, the source code, are available to everyone; second, any improvements

made by the user must be shared with the community of users; third, a business makes money not from the source

code, but from its product and support services; and finally, intellectual property rights are not a part of its business

model. She further says that instead of centralizing ownership in the hands of a few wealthy individuals, open source

decentralizes ownership and in the process, builds upon the creative energy of thousands. Other authors suggest that

the main difference between open source and proprietary software is in open source’s focus on sharing and

cooperation, instead of control and exclusivity. They argue that open source licenses are an alternative to the

governance mechanisms in the intellectual property model (Valimaki, 2005, p. 113). Lindberg (2008) notes that in the

intellectual property model the proprietary software companies own the copyright to all of the software that

they distribute, while, alternatively, in the open source model projects are owned by their communities, or more

precisely by their contributors (p. 156). He explains that, just as depositors become part owners, when they put their

money into the credit union repository, coders become part owners when they put their code into the source code

repository (p. 156).

Another strong argument is that open source is an alternative to traditional economic intellectual property

incentives (Maher, 1999, p. 695). While contemporary intellectual property law is based on the assumption that only

economic incentives can motivate creators, open source contrasts that sentiment in every sense. Proponents of open

source argue that the open source model exposes the problems of proprietary systems and that the model’s

philosophy emphasizes the good of the community over the good of the individual (Halbert, 2003). The most

significant feature of open source is the voluntary contribution and sharing by creative people, just for the sake of the

information being used and enjoyed by others. The ongoing trend in contemporary literature is to praise this value

system and to advocate for its expansion into other realms of technology (Halbert, 2003). Open Source Chemistry,

Open Source Biotechnology and Open Source Drug Discovery are a few examplesof this trend. But as clarified earlier,

open source relies on the principles of intellectual property rights to create binding legal relationships among creators.

Thus, the property relationship, social organization and business dimensions of open source need to be analyzed to

determine how close open source is to emerging as an alternative to the present model of intellectual property.

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The concept of property and its relationship to collaborative research

In modern times, a substantial proportion of technological innovation and a significant amount of artistic creation are

the result of collaborative research (Mandel, 2011, p. 2001). Present day research is characterized by large scale

collaborations owing to the need for multi-disciplinary expertise and the complexity of problems. Encouraging,

THIRUTHY

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