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In law, intellectual property (IP) is an umbrella term for various legal entitlements which attach to certain types of information, ideas, or other intangibles in their expressed form. Intellectual property laws confer a bundle of exclusive rights in relation to the particular form or manner in which ideas or information are expressed or manifested.
A license in the sphere of Intellectual Property Rights (IPR) is a document, contract or agreement giving permission or the ‘right’ to a legally-definable entity to do something (such as manufacture a product or to use a service), or to apply something (such as a trademark), with the objective of achieving commercial gain.
It is important to note that IP and Licensing are two different legal concepts each with their own rationale and particular objectives. The basic public policy rationale for the protection of intellectual property is that IP laws facilitate and encourage the pursuit and disclosure of innovation into the public domain for the common good, by granting authors and inventors exclusive rights to exploit their works and invention for a limited period. Like other forms of property, intellectual property (or rather the exclusive rights which subsist in the IP) can be transferred or licensed to third parties. Thus, while IP refers to the legal entitlements over the manifestation of intellectual work, licensing refers to the particular conditions (as specified in a contract) under which these entitlements may be transferred. Therefore, the owner of the IP typically maintains the IP even when the particular idea, device or method has been licensed to third parties. Thus, the original IP owner is still legally protected.
Software licenses are binding contracts usually designed to place significant limitations on the use or application of IP represented by computer code. In its most restrictive form, a software license only gives the licensee the right to install and use one copy of the software in a single computer. In cases when this type of licensing is applied to software that may be potentially beneficial to a considerable share of the market, IP protection followed by Licensing ensure both, the opportunity for the developer to generate a profit, and the release of the software into the public domain in accordance to the public policy discourse for the common good.
One of the main challenges in the transfer of assistive technology (AT) software to the disability market is the limited size of the latter. Furthermore, the disability market is also highly heterogeneous. In other words, it is composed by individuals with particular and very distinct needs from one another’s. The first challenge (i.e. market size) impacts the production cost of AT since it is typically not possible to take advantage of high-volume production savings. The second (i.e. market diversity), reduces the profit margin of AT developers since significant resources must be spent in tailoring particular products to individual needs or providing personalized support. As a result, the application of a traditional market-driven scheme for the development of AT software tends to discourage, rather than encourage, the release of AT software into the public domain, effectively limiting access to developed technology. In these cases, the original purpose of IP as a vehicle for common good is seriously compromised. It is also important to note that the disability market is unlike most traditional markets: while other industries (e.g. telecommunications) enjoy the widespread availability of competing manufacturers and services in all stages of the process of deployment of new products, the market of disability lacks generalized interest and thus, diversity in the products and services offered. Under this conditions, encouraging market-driven competition (rather than need-based collaboration) discourages the transfer of new technologies. Moreover, this environment results ideal for the creation of commercial and institutional monopolies that hinder even further our ability to provide suitable alternatives. Finally, under a market-driven competitive environment for AT development, collaboration among the different members of the disability community is naturally discouraged. This includes researchers, users, caregivers and service providers.
Open Source software licensing was created to overcome some of the limitations of traditional market-driven licensing strategies. This is relevant in cases when typical licensing offers a suboptimal alternative (e.g. identified niche markets). This may be the case of AT development and transfer. In general, open source licenses are less restrictive and defined positively in terms of allowances (as supposed to negatively in terms of restrictions). Thus, an open source license allows, for instance, the unrestricted redistribution of the software under certain conditions such as the inclusion of the original license and copyright notice (to protect the redistribution rights of others and ensure that the IP is maintained). It is important to note that open source licensing does not mean “royalty-free” since it is still possible to distribute copies of the software for a fee. Also, as mentioned before, the IP in the form of copyrights, for example, is not lost or “given away” as it is commonly assumed.
In the case of AT software development, open source licensing may facilitate collaboration and possibly help strengthen and connect the often isolated AT development groups. This is because they would be encouraged to contribute their knowledge for a common benefit (the original goal of IP) rather than being obliged to come up with their own solutions (with the unnecessary resource expenditure that this entails) due to current, highly competitive, market-driven strategies.
In many Rehabilitation Engineering Research institutions, software licensing likely represents a significant portion of the operational costs. Furthermore, as mentioned before, typical licensing limits the rights of the licensee (i.e. the researcher in our case) who is not authorized to modify the software in order to fulfill his/her particular needs and/or adapt his/her study to particular conditions. Furthermore, when an application is developed, the researcher may be required to pay a royalty for the sale of copies of such application to the original developer. At the very least, the distributor is obliged to recover the licensing cost for the developed application. In all these cases, the cost will likely be covered by the user who, in turn, may also be required to purchase his/her own licenses to comply with minimum software/hardware requirements. Once more, we can argue that this model for software development is appropriate and even necessary in highly profitable markets, since it ensures a fair and legal economic advantage to the original developer. However, the same scheme applied to the market of disability may be considerably hindering our production capacity.
On the one hand, the use of open source software guarantees increased freedom to the researcher to modify code according to his/her needs and even redistribute modified copies of the software so others (researchers, users, general public, caregivers) can also take advantage of new developments. On the other hand, this will directly impact the cost of new AT software developments with immediate benefits to the users. Thus, operating costs can be redirected towards other resources effectively optimizing and facilitating the transfer of new technologies.
The main advantage of Open Source release of AT software is perhaps the immediacy of availability of the application to the user. However, it is important to note that, even though the opportunities for license-based revenue generation are limited for open source release, there are a number of alternative strategies available. The following list summarizes the most common:
The nature of the market of disability encourages researchers and developers of assistive technologies, to consider alternatives to standard practices that may respond more effectively to the dynamic and ever challenging issues of the field. A summary of the potential advantages of the application of open source principles to the research and development of AT software has been presented. It is recommended that a more careful evaluation of both, standard and open source licensing strategies be performed in order to determine their relevance to the development and transfer of assistive technologies. It is also important to consider that, although they have been used more often, there is little evidence suggesting that traditional technology transfer strategies are in fact the most effective. Thus, the need for opportunities to evaluate other non-standard models becomes evident.
In addition, as governmental, non-for-profit, research and academic institutions, most Rehabilitation Engineering Research Institutes are committed to the prompt and effective delivery of knowledge to the general public. It is possible to consider that the use of open source software, and release of new developments under the same model, will likely increase the ability of these Institutions to fulfill their implied social commitment.