South Africa: Opening Up Open Source

Last Updated: 7 August 2012
Article by Elaine De Beer

Most Read Contributor in South Africa, September 2016

Open source software ('OSS') is becoming increasingly relevant in the commercial world:  it's estimated that some 85% of companies now use OSS (although they're sometimes unaware of the fact), with it being particularly big in the area of cell phones - Sony Ericsson  claims that over 80% of the software in its handsets is open source.   And the old notion that  all OSS has a viral effect is a canard - today much of it is secure,  of a very good quality, and cost effective too!

So what exactly is OSS?  Well, the term 'open source' was coined in 1998 when a body called the Open Source Initiative was formed, although the well-known Linux operating system has been around since at least 1991. One of the greatest myths about OSS  is that it's free of charge. This may well be because some refer to  OSS  as 'free software' - sometime the names are even joined  in the form 'Free and Open Software' (FOSS)  - but, as has been said apropos anything and everything,  there's no such thing as a free lunch, and has been said in relation to software,  the free  'is a matter of liberty, not price'.

So the user of OSS  is entitled to do a great deal with it, but he may have to pay a fee for that privilege. And even if there isn't a  fee payable, it's worth bearing in mind that there are always costs involved in the  maintenance of software,  as well as in monitoring developments in OSS projects, and conducting internal audits of OSS. Just as it's worth bearing  in mind that  software companies make good money from OSS – even if there's no income from distribution, there is income  from service and support, and it's known that Hewlett Packard makes billions per annum from the Linux products.

The reason why you might have to pay a fee to use OSS is exactly the same reason why you have to pay one to use conventional (closed source) software – the owner of the software has legal rights to it. Making software available as open source in no way detracts from these legal rights, and it would be a mistake to think that OSS  cannot be detected – it can, and all the indications are that OSS owners are more assertive than ever in enforcing their rights.

The rights that an owner has to software are, of course, in the form of copyright and, in some cases, patents.  Copyright law gives automatic protection for  computer software without the need for registration , and the owner has the right to control the copying, modification and distribution of the software.  In addition, the owner may be able to get a patent for the software, in which event the owner has the absolute right to control the making or using of the software, irrespective of whether or not there has been any copying - this is a controversial area of the law because, although the law says that you cannot patent a computer program 'as such',  this has been interpreted in many countries to mean that you can still patent a technical innovation that uses software (the issue has never been decided in South Africa, but lots of software patents have been registered on the assumption that the South African courts will follow this line of reasoning).

Rights to software are invariably granted in the form of a licence rather than an outright sale.  A licence is, in effect,  no more than an agreement by the owner of legal  rights that some other person may exercise some or all of those rights. Whereas a conventional software licence may simply give the user the right to run that software on a specified number of machines, an OSS licence  will give the user far greater  rights. That's because certain rights and obligations lie at the heart of OSS:  there is in fact something known as the Open Source Definition (OSD), and this includes the right to redistribute the software; the  right to access source code and make modifications and derived works;   the obligation not to discriminate against people, groups or products; and the obligation to keep it technology neutral.

So an  OSS licence  will give the user rights to run the program for any purpose, to access the source code and study how it works, to make improvements, and to redistribute copies.   It may contain a disclaimer of liability in the case of any damage being suffered, and  it may require  the user to include the copyright notice and the liability disclaimer when redistributing. It may possibly  contain a restriction of redistribution in the case of  modifications, a concept that is known as 'copy left'.

OSS licences come in many shapes and sizes, and there are over 2000 unique software licences available.  Well-known names include the GNU GPL, Artistic, LGPL, Apache, and the Microsoft Public Licence. The Open Source Initiative reviews these agreements to see if they are  OSD compliant. This field is  becoming increasingly important and increasingly complex. If you want to know more about OSS, and how your company should handle it, you may wish to attend one of the OSS seminars that ENS, together with Black Duck Software and SQS, will be hosting in Johannesburg, Cape Town and Stellenbosch over the period 21-23 August 2012.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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