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Introduction

In the wake of the COVID-19 pandemic, the government of Kenya has made tremendous efforts to transition service delivery from physical to online platforms. Notable examples include the judiciary’s electronic filing system, online marriage services at the Attorney General’s office and electronic land transactions by Nairobi County. Our previous post discussed the impact of transitioning service delivery to electronic means from the perspective of the judicial system. This piece is dedicated to intellectual property (IP) and software-related implications from such digitization.

Software as the subject of IP

Software is a program or set of programs that direct the functioning of different components of a computer and enable it to undertake specific tasks.¹ Section 2 of the Copyright Act (2001) (the Act) defines a computer program as ‘a set of instructions expressed in words, codes , schemes or in any other form, which is capable, when incorporated in a medium that the computer can read, of causing a computer to perform or achieve a particular task or result.’ Under the Act, computer programs are classified as literary works which are only eligible for copyright if sufficient effort is expended in making the work original.²

For software, the originality and application of skill test is met in the process of building and developing the source code. Developers can assert their rights by restricting access to the source code. Herein lies the key difference between open source and proprietary software.

Open source and proprietary software

Open source software (OSS) is one that is freely distributed without restrictions on the source code. Users can freely alter and optimize OSS. Consequently, OSS is associated with concepts such as knowledge sharing, freedom and open standards.³ Developers, as authors, can decide to distribute the source code subject to terms which grant recipients rights to make use of it and redistribute it on the same basis.⁴ This derives from Section 26 of the Act which grants the developer rights to control, distribute, adapt, translate and communicate their works to the public.

The free-access nature of OSS lowers its procurement prices and at times the maintenance and optimization charges. In addition, the minimal restrictions imposed means that the source code can be altered and optimized depending on users’ needs thereby aiding customizability.⁵ The clear benefits for e-governance include lowering operational costs as well as providing open standards for interoperability.⁶ OSS’s success has been associated with experienced users who can handle computers and are aware of their existence.⁷ Such level of high expertise reduces OSS’s desirability. For proprietary software, the developer retains strict control over the source code. It is commonly associated with stringent restrictions on its use and the retention of the source code.⁸ Restrictions may vary depending on the terms of the license and include prohibitions against altering or modifying the software or making unauthorized copies.⁹ Any third party use would require express consent from the IP holder otherwise it would amount to infringement. Proprietary software often comprises of task-specific or narrow-scope programs and is developed by larger publishers. As a result, it is more suited for critical operations as these require less margin for error. Proprietary formats are more commonly used in public administrations due to the minimal expertise needed to operate them.¹⁰ As a result, proprietary software is more likely to be interoperable with other systems already in use.¹¹

Implications

Copyright ownership confers a number of exclusive rights on authors but subject to some exemptions. These exemptions are commonly known as ‘fair use/fair dealing’. The purpose of fair dealing/use is to permit acts done for‘…scientific research, private use, criticism or review, or the reporting of current events subject to acknowledgement of the source.’¹²

Licensing, a domain of contract law, is commonly used for distribution of software. However, certain licenses may at times conflict with copyright law e.g. by prohibiting acts of fair use/ fair dealing. This is common in proprietary software licenses which usually contain stringent restrictions. In such instances, it has been argued that freedom of contract may override copyright laws. It is therefore imperative for State agencies to consider the IP implications of any licensing agreements they enter into.

OSS vs Proprietary Software for digitization?

One of the benefits of OSS is greater independence. The minimal restrictions in OSS licenses means that State agencies would have greater autonomy to alter and customize the software to fit their functionalities. This in addition to the option of availing it for use by other bodies reduces related costs.

There is public interest in ensuring platforms serving State functions are not owned/controlled by commercial entities. The public has an interest in such agreements since the ICT expenditure of State bodies is funded directly or indirectly by taxpayers i.e. public funds, public code.¹³ Further, proprietary software has drawbacks such as software obsoleteness, vendor lock-in and long term reliability which all serve as potential limitations.¹⁴ These may render it unsuitable for e-governance.

OSS is not without its drawbacks. For instance, it requires high bandwidth connection and advanced levels of computer expertise for optimal development which is absent yet needed for support and training. These factors contribute to its slow uptake especially in developing countries (DCs).¹⁵ Further, OSS based workstations may have integration difficulties due to the nascent nature of its use in e-governance.¹⁶ State agencies may also be subject to developer liability where they develop their own source code and make the same openly available. OSS licenses commonly contain exclusion clauses which limit or restrict the liability of developers. However, due to the different kinds of vulnerabilities that may arise in software,¹⁷ the exclusion clauses may not apply in all cases to protect developers from liability.¹⁸ Lastly, the technical expertise needed for OSS maintenance as well as certain quality concerns¹⁹ may deem it unsuitable for supporting critical services.²⁰

Despite these risks, there has been steady support and adoption of OSS systems by public bodies around the world including the City of Munich,²¹ the national police force in France,²² the Italian Ministry of Defense and the Barcelona city council. A 2010 report by the Centre for Strategic and International Studies found that a total of 364 open source policy initiatives had been proposed in different States.²³

In Kenya, the National ICT Policy 2019 details government’s aim to promote use of OSS in public administration. The Policy highlights that OSS alternatives shall be preferred over proprietary formats.²⁴ In spite of its growing popularity, existing literature suggests that OSS adoption in DCs like Kenya is low.²⁵ In Kenya, a majority of the use cases were found to be in the private sector.²⁶ In 2012, a study on OSS use among private organizations in Nairobi found that 60% of respondents adopted some form of OSS program.²⁷ Another study on the telecommunications industry also noted increased OSS adoption in both servers and desktop applications.²⁸ The primary drivers for this adoption was noted to be the anticipated economic benefits while the inability to support mission critical services was noted to be a detractor. It has also been noted that OSS is being increasingly adopted by cyber cafes, publicly available businesses²⁹ and in academic libraries.

Conclusion

From an IP perspective, it is clear that OSS is generally more preferable due to the licensing implications of proprietary software agreements. However, it remains to be seen whether IPRs are a relevant factor where the primary goal is to support mission critical applications such as public service delivery.

On this basis, this blogger opines that State agencies should take into account not only the IP implications but also their specific aims³⁰ and capacities. In this regard, increasing OSS use in the private sector presents the government with an opportunity to learn from different industries’ experiences. This would assist the State to develop a holistic framework for OSS adoption.