Home > Topics > Specific Strategies and Mechanisms for Facilitating Access to Innovation > Open Source Licensing > Editor's Summary, Implications and Best Practices

Open source licensing may seem a paradoxical option for managing intellectual property, but this chapter opens up its possibilities. Open source does not mean “throw away,” nor does the decision to pursue open source licensing follow only from altruism: it can also be based on healthy self-interest. Open source licensing has been most successful in the computer software field. Linux, Apache, and BIND are perhaps the best examples. An evolutionary process, open source software development relies upon trial-and-error testing in many different environments and contributions from anyone. Known as “the bazaar” mode of production, it can only work if would-be users and developers can access the source code. Proprietary software development limits such access for two reasons:

1. The source code is a trade secret and
2. The source code’s original expression has copyright protection.

This is why the official open source definition, published on the Web site of the Open Source Initiative, requires open source licensees to be free to:

• use the software for any purpose whatsoever
• make copies and distribute them without paying royalties to the licensor
• prepare derivative works and distribute them, also without payment of royalties
• access and use the source code
• use the open source software in combination with other software, including proprietary (that is, non-open source) software.

In other words, in open source software licensing, anyone, anywhere, and for any purpose should be allowed to copy, modify, and distribute the software (either for free or for a fee) and, therefore, anyone should be allowed full access to the software’s source code.

Open source licensing is thus a kind of IP protection, and so it differs from placing technology in the public domain through straightforward publication. The latter has its advantages. Protecting intellectual property—even through open source licensing—can be an expensive and time-consuming process. And claiming ownership over an innovation may cause trouble for ongoing collaborations. It may also generate ill-will in general. Nonetheless, an open source strategy may sometimes be the best approach for encouraging the widespread adoption and development of an innovation. Some innovations (such as software) are automatically protected by copyright, so a license clarifies the terms of its use. An open source license may also be the most effective way to prevent others from patenting your innovation. Such a license also gives the innovator the right to set terms of use and exclude users who will not abide by those terms. For example, the license may require users who improve the product to make those improvements available to others on the same terms as the initial innovation was made available to them. Finally, IP protection signals to potential investors that this innovation has value.

Still, why would anyone forego the possibility of making money off his or her invention? Why would anyone opt for open source licensing except for altruistic or personal reasons? The assumptions in these questions reveal an unnecessarily myopic point of view. After all, although open source licensing cannot rely on royalties, a one-time fee can be charged that can be as high as the market can bear, which has generally been limited, however, by the cost of reproduction and distribution. For software, this is close to zero. For other kinds of technologies, however, the costs could be higher, and since there may be fewer distributors, licensees may be willing to pay more for “copies” of the technology than in the software industry. As a result, a licensor may be able to profit from the sale of non-software open source technologies.

But most of the incentives for open source licensing are indirect: cost savings, productivity gains, the capital provided by a good reputation, and, most importantly, an expanded user base, which correspondingly expands complementary goods and services. As the market expands, revenues from sales, one-off licenses, dual licensing, and complementary products and services may be enough to offset the opportunity cost of open source licensing. IBM has used this approach very successfully. Of course, computer programmers are often motivated not by money but by fame and the chance to learn new skills. This could also apply to laboratory researchers. Very importantly, open source licensing can place an institution in a network of innovation with enormous collaborative potential. Finally, open source licensing can encourage the development of alternatives to proprietary technologies. The greater the number of nonproprietary tools in a given tool kit, the greater the incentive for everyone in the field to invest in developing substitutes for the remaining proprietary technologies, since it will allow for freedom to operate for the whole tool kit.

Most of the above relates to software. This is not for nothing. Despite several attempts to adapt open source approaches to the biological sciences in both health and agriculture, they have not yet been successful. In fact, it can be argued that the open source approach of the software industry is not applicable without major modifications to the biotechnology area. This is not to say that it is not worth trying and some good initiatives are underway to explore various options.

Given the variables and possibilities associated with open source licensing, the decision to pursue it requires careful thought. This chapter breaks down this decision-making process into five components, and also distinguishes between “copyleft” and “academic” forms of open source licensing. The implications of computer software open source licensing for other fields—especially for niche markets that do not attract investments in proprietary technologies—are also considered. Open source technologies, for example, can be tailored to serve small agricultural and pharmaceutical markets in developing countries. And given the growing reliance on computer technologies in the life sciences—bioinformatics software programs, for example—the possibilities for open source licensing in this field have great potential. Still, IP managers should be wary of simply imitating the open license procedures of the software industry. Such licenses are not generic enough to cross fields, and it is still unclear whether biotechnology innovations in general will lend themselves to open source licensing. In short, blind imitation is not a good idea, but creative borrowing might open up new prospects for open source licensing. Two case studies of such licensing in both a nonprofit and for-profit settings are provided in the hope of catalyzing such creativity.

Key Implications and Best Practices

Given that IP management is heavily context specific, these Key Implications and Best Practices are intended as starting points to be adapted to specific needs and circumstances.

For Government Policymakers

• Open source offers an alternative mechanism for facilitating access to innovations in health and agriculture, provided the open source approaches so popular in the software area can be successfully adapted to the biological sciences. It should be modified and then appropriately balanced, however, against proprietary rights.

For Senior Management (university president, R&D manager, etc)

• When properly managed and implemented, open source, proprietary rights and release into the public domain are all viable, and indeed complimentary, strategies for IP management. However, these should be informed choices, and this, by definition, requires adequate capacity and resources.

For Scientists

• In the future, open source licensing may apply to other software, and/or research tools, used in your program. Hence, understand any attached licenses, and what your obligations might be.
• Do not think that an open source license means you can do anything with the materials you receive. Several open source licenses, such as BiOS, are extremely complex and several universities are unable to sign them. Make sure you consult your technology transfer officers before signing any agreement.

For Technology Transfer Officers

• IP management is complex, and involves many options. Recognize that, depending on the specific circumstances, open-source licensing might be a better option that obtaining and maintaining exclusive proprietary rights.