Governments working to make their data publicly available and protecting their rights should turn to using open source, recommends Benjamin Jean, a Paris-based lawyer specialised in Intellectual Property Rights. The software's copyleft licence provides a good way to diffuse IPR, he argues. "Open source and copyleft are good for competition."
The IP specialist was one of the organisers of the European Open source & Free Software Law Event, which took place in Paris on 12 October.
Governments that mismanage their IP rights run the risk of accentuating a monopoly or quasi-monopoly, explains the lawyer. "Even if they are economic actors, they must not neglect their function to protect competition." Using free and open source, however, is the best use of their IPR, for the government's needs and for the competition, says Mr Jean.
Reverting to free and open source software solutions is a good way to break monopolies. "Governments have to be proactive, and ask for free and open source software when doing procurement", says Mr Jean. "They should promote it, and use it to create their own software."
RAND delays innovation
Moreover, the lawyer argues that software solutions available under free and open source licences encourage reuse of components. If innovation is the goal then use open source, he recommends to governments. "Anyone who complies to the licences, can use it to start creating new solutions."
Proprietary software available (available under Fair, Reasonable And Non-Discriminatory terms) slows down innovation. "Users need to ask permission, apply for a licence and resolve disputes through courts." Community-led free and open source projects can't apply for such licences, since they can't tell if their work is used commercially or not.
Court battle
The lawyer says that proprietary software firms are increasingly taking public administrations to court, trying to slow down the advance of open source. In 2011 for instance, two software firms took the Picardie region to the Council of State. The region is using Lilie, an open source tool for digital work spaces in schools, and was procuring services for this tool. The software companies complained; they wanted to sell their own proprietary solutions instead. The council threw out their arguments, acknowledging in its decision that open source does not distort competition. According to Mr Jean, such cases are on the rise.
More information:
FOSS and competition law - Benjamin Jean
Joinup item on the Picardie region Lilie case