Patent laws, if adopted, may stifle the growth of open source software in India, a market where 20 per cent of the software used is now open source as against 80 per cent proprietary software.
In fact, some large MNCs which are using open source software (and proprietary too in some measure) are reportedly investing up to $100 million in legal fees to fight patent threats.
"Patents the act of granting ownership on the applicability of the software or the process which the software performs will hurt the Indian software industry. It can have a crippling effect on the open source model," asserted Michael Tiemann, V-P, open source affairs, Red Hat, at a recent knowledge symposium organised by Red Hat Inc and IIT Delhi.
"Open source software (OSS) and patents are in conflict with each other," underlined Vijay Kumar, academic director, MIT, adding, "The basis of OSS model is free sharing of source code and the right to use other's work unrestricted."
Any OSS is composed of several patches. It is fundamentally a collective software pool made by developers all over the world who are free to introduce any code/ application in the source code.
"If software patents are allowed, the authors may (unknowingly) violate patent of an existing software as it becomes hard to ascertain which application is patented," explained Venkatesh Hariharan, head, open Source Affairs, Red Hat, India.
With this, it is necessary to understand how software copyright is different from granting patents. Copyright which means expression of an idea can be copyrighted but not the idea itself wherein two developers write their own codes, but come down to a common conclusion, may enjoy copyright for their respective codes. As per copyright law, any computer software is a literary work and thus enjoys copyright protection.
Issues pertaining to intellectual properties, like the patent and the copyright, have come into focus ever since OSS model has been adopted at several state government departments, institutions and corporates.
"Many trivial ideas have been palmed off as innovations and successfully patented. For genuine innovators and entrepreneurs, patents have become like broken glass on the highways of progress," said Hariharan.
The thought shared by the experts was that software is adequately covered by copyright and patents are therefore, unnecessary. "Patents are costly, paying a lawyer to write a patent application more expensive than the cost of applying for a patent," noted Hariharan.
The popularity of open source began scaling up when websites like Google, Amazon, Wikipedia began running on OSS. Today, Apache - an open source based web server - commands nearly 80 per cent market share and the number is only going to grow, point experts.
"Governments in the US and elsewhere are adopting Linux and striking down software patent legislation," said executive VP corporate affairs, Tom Rabon. "Call it as economic efficiency or a futuristic approach, all roads lead to open source," is Rabon's prediction.
Governments, on the other hand, view open source as a way to move away from US-based software company products that costs millions on implementations and another hefty amounts for regular updates or security upgrades.
Unless, the lacunae in the IPR laws in India are addressed, the issue will continue to be a grey area for companies like Red Hat that market open source services and in our endeavour to become a digital economy.
