DIGITIZING SERVICE DELIVERY: EXPLORING USE OF OPEN SOURCE vs PROPRIETARY SOFTWARE BY STATE AGENCIES IN KENYA
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
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.
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.
1 Computer software, Reference Terms, Science Daily at https://www.sciencedaily.com/terms/computer_software.htm, Software definition at https://www.yourdictionary.com/software
2 Sections 2 and 22 (3) (a), Copyright Act (2001)
3 Open source software in e-government, Working Paper, Directorate General for Research, European Parliament at https://www.europarl.europa.eu/RegData/etudes/etudes/join/2003/338693/DG-4-JOIN_ET(2003)338693_EN.pdf
4 See breakdown of the GNU General Public License at B. Adida, Understanding Open Source Licensing, at https://openacs.org/about/licensing/open-source-licensing
5 Open Source Software Options for Government, Version 2.0, April 2012, Cabinet Office, United Kingdom at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/78964/Open_Source_Options_v2_0.pdf
6 R. Baguma, Affordable E-governance Using Free and Open Source Software, Makerere University at https://www.researchgate.net/publication/242665906_Affordable_E-governance_Using_Free_and_Open_Source_Software
7 Due to the technical expertise required to operate OSS, it has been argued to be more suitable for ‘sophisticated’ users such as administrators. See S. Comino & F.M. Manenti, Open Source vs Closed Source Software: Public Policies in the Software Market, Industrial Organization 0306001, University Library of Munich, Germany (2003) at https://econwpa.ub.uni-muenchen.de/econ-wp/io/papers/0306/0306001.pdf Therefore, in client-based operating system markets, closed source formats may be more appropriate
8 A. Picincu, Advantages & Disadvantages of a Proprietary System vs. an Open Platform, Chron at https://smallbusiness.chron.com/advantages-three-disadvantages-proprietary-system-vs-open-platform-38010.html
10 See note 7 above
11 One of the biggest hindrances to OSS adoption among public bodies is the difficulties experienced in integration with other systems used by different departments or for different tasks that it is not optimized to support. It is for this reason that even the earliest (public sector) supporters of OSS i.e. the City of Munich, could not fully shift to open standard platforms but rather could only implement a side by side operation with a number of tasks being performed by proprietary software.
12 These acts are exempt by virtue of their contribution to human advancement as well as due to the fact they are not inconsistent with the right holder’s commercial uses. See Section 26 (1), Copyright Act (2001)
13 The ‘Public Money, public code’ is a campaign initiated by the Free Software Foundation Europe in a bid to encourage the enactment of legislation in the European Union requiring software that is acquired by public finances and used by public institutions to be made publicly availed under an OSS license. See the foundation’s Open Letter at https://publiccode.eu/openletter/
14 A counter argument in favour of proprietary software is that outsourcing IT solutions allows State agencies to focus on their key mandate. However, it should be kept in mind that governments ought to prioritize their society’s long-term interests as opposed to its own interests as a consumer. See J.A Lee, Government policy toward open source software: The puzzles of neutrality and competition, Know Techn Pol 18, (2006), at https://link.springer.com/article/10.1007/s12130-006-1007-5
15 In most DCs, no large scale implementation of OSS has occurred outside donor funded projects. See V.V Reijswould, E. Mulo, Applying Open Source Software in a Development Context: Expectations and Experiences.
A Case Study of a University in Uganda, E–Learning, Volume 3, Number 3, 2006, Uganda Martyrs University, at https://journals.sagepub.com/doi/pdf/10.2304/elea.2006.3.3.361
16 One of the biggest hindrances to OSS adoption among public bodies is the difficulties experienced in integration with other systems used by different departments or for different tasks that it is not optimized to support. It is for this reason that even the earliest (public sector) supporters i.e. the City of Munich, could not fully shift to open standard platforms but rather could only implement a side by side operation with a number of tasks being performed by proprietary software.
17 Software is prone different defects that carry varied levels of risks e.g. arise i.e. bugs, malware, addition of proprietary codes, malicious code. However, even in the most common OSS licenses, exclusion clauses may not cover all situations due to the different errors that may occur during software development.
19 A.N Kamiru, Adoption of Open Source Software by the Telecommunications industry in Kenya, Thesis Dissertation (2015), University of Nairobi at http://erepository.uonbi.ac.ke/bitstream/handle/11295/93183/Kamiru_Adoption%20of%20open%20source%20software%20by%20the%20telecommunications%20industry%20in%20Kenya.pdf?sequence=1&isAllowed=y
20 Proprietary software often requires minimal maintenance from users because majority of software support services are provided/undertaken by the supplying vendor. OSS on the other hand is developed and maintained by the user necessitating a user to have the requisite ‘in house’ expertise to develop solutions for any potential breaches or downtime. For this reason, it has been argued that the presence of professional support in proprietary software makes it appropriate for mission critical applications. See Gitahi Nganga, Our Open Source Software Obsession is Unhealthy in Digital Development, ICTworks at https://www.ictworks.org/obsession-open-source-software-unhealthy/
21 In 2017, the City of Munich’s local government decided to move back to Microsoft (proprietary) software citing compatibility issues. However, this decision was renounced in 2020 when newly elected representatives indicated their intention to lay emphasis on open standards and free open source licensed software. See https://linux.slashdot.org/story/20/05/23/238252/munich-says-its-now-shifting-back-from-microsoft-to-open-source-software—-again
22 R. Paul, ‘French police: we saved millions of euros by adopting Ubuntu’
23 Government Open Source Policies, Centre for Strategic and International Studies, March 2010 at https://csis-website-prod.s3.amazonaws.com/s3fs-public/legacy_files/files/publication/100416_Open_Source_Policies.pdf In a previous survey, the center found that final action had been taken on 193 out of the 275 initiatives reported. This is indicative of a growing trend.
24 The policy also formalizes the government’s position on OSS by providing that where software development is commissioned by the government, it shall be delivered with the source code and made publicly available for use by any government agency that may require close or similar functionality.
25 C.M Gichira, A.M Kahonge, E.K. Miriti, Adoption of Open Source Software by Organizations – A Framework for Kenya, International Journal of Computer Applications (0975 – 8887) Volume 59– No.7, December 2012 at https://www.researchgate.net/publication/260500714_Adoption_of_Open_Source_Software_by_Organizations_A_Framework_for_Kenya
26 There is scanty literature/documentation of the use of OSS by public administrations in Kenya. The only research found on this was a study on OSS adoption by local authorities conducted in 2011 which also reported minimal adoption. See J. Dibo, Open Source Software Adoption by Kenyan Counties based on selected local authorities, Thesis Dissertation (2011), University of Nairobi at http://erepository.uonbi.ac.ke/bitstream/handle/11295/96815/Dipo_Open%20source%20software%20adoption%20by%20Kenyan%20counties%20based%20on%20selected%20local%20authorities.pdf?isAllowed=y&sequence=1
27 C.M Gichira, A.M Kahonge, E.K. Miriti, Adoption of Open Source Software by Organizations – A Framework for Kenya, International Journal of Computer Applications (0975 – 8887) Volume 59– No.7, December 2012
28 A.N Kamiru, Adoption of Open Source Software by the Telecommunications industry in Kenya, Thesis Dissertation (2015), University of Nairobi.
29 C.M Gichira, A.M Kahonge, E.K. Miriti, Adoption of Open Source Software by Organizations – A Framework for Kenya, International Journal of Computer Applications (0975 – 8887) Volume 59– No.7, December 2012
30 It has been argued that the appropriate software is not a straight choice but rather one that is dependent on the specific needs in question. See G. Nganga, Our Open Source Software Obsession is Unhealthy in Digital Development, ICTworks.