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Submission to

Prime Minister’s Community Business Partnership

Public Request for New Ideas in Relation to Encouraging Philanthropy

15 August 2003

Submission by:       Brendan Scott

Brendan is a lawyer running a practice in Sydney in the areas of information technology and telecommunications law.

 

1.                   Key Proposal

1.1.               The Federal Government ought to encourage philanthropy by endorsing the distribution of software, and other works the subject of copyright, on the basis of access regimes and recognising the social benefits provided by access regime gifting.  The Federal Government ought to support associated measures to ensure the effectiveness of access regime gifting.

2.                   About Access Regimes

2.1.               Access regimes are licensing schemes.  They provide a means by which an individual, family or business who owns copyright in certain material to give the benefit of that material to the broader community without an expectation or desire to receive anything in return.  As the conditions of the gift permit innovation by third parties on an initial seed, this act of giving in practice can have substantial, collateral and compounding benefits over time as others incrementally improve on the initial gift through their own philanthropy under the access regime (see Example 1 in section 3.1 below).

2.2.               Access regimes were initially developed in the information technology sector.  They have proven particularly successful in producing innovation in that sector (examples are provided).  The giving of software under access regimes is an established philanthropic model with proven and substantial benefits.  This submission uses software as an example of the application of an access regime.  However, the benefits of access regimes as a philanthropic model can be generalised to any product which is durable and non rival (such as music or the visual arts).

3.                   Simple Example of Operation of a Software Access Regime

3.1.               Example 1: I own the copyright in some software S1 which displays the temperature in Fahrenheit.  I gift that software to the community under an access regime.  At that moment, the whole community receives a benefit from my gift in that they can all now tell the temperature in Fahrenheit without needing to pay a licence fee.  Further, I retain the ability to use the software.

3.2.               Example 2: As the conditions of the access regime expressly permit third parties to innovate on my software, another person (B) could add a module of functionality S2 to that software to tell the temperature in Celsius and participate in the philanthropy by releasing that code under the access regime (the access regime would require any release to be on the terms of the access regime).  This produces an additional instantaneous benefit to the community.  Not only this, a later party C may add further functionality (S3) and so on, in this way the initial seed gift begins to compound.  If the software has the right characteristics a community of users and innovators will develop centred around S1 and its incremental innovations.

3.3.               I note in Example 2 that a key function of the access regime is to promote incremental innovation.  While B may have been willing to donate S2, because of its nominal value, if I had not made the initial seed S1, B may not have been willing to develop and donate the entirety of S1+S2, and likewise for C. 

3.4.               If the access regime permitted B to develop S2 on the back of S1 but distribute it other than on the basis of the access regime later takers, such as C, would be discouraged from making their own contributions (for fear that the benefit of C’s gift, which is intended to benefit everyone, will flow primarily to B rather than its intended recipients).  The persistence of the access regime is an important element in maximising the philanthropy effect of software gifting.  A reviewer of this submission noted in this context that he was able to get people to “freely and enthusiastically give their time and labour to plant trees and pull weeds to improve areas of publicly accessible bushland, but try as I might, I have been unable to get them to do the same in my very neglected private back yard.”

3.5.               In practice an access regime can operate as a form of PPP (public private partnership) structure in which the Government establishes the fundamentals of a market for access, with private enterprise driving that market going forward.

4.                   More About Access Regime?

4.1.               An access regime is fundamentally a gift of software (or other content) by the owner (or a person with the requisite rights in the software) by way of a licence.  The terms of the licence are designed to encourage a culture of corporate and individual social responsibility and to maximise:

(a)                 The creation of a community of interest (based on use) for the software;

(b)                 Accessibility of the software; and

(c)                 Future gifting of improvements to that software by other members of the software’s community of interest.

4.2.               In practice, this requires the licence terms to include:

(a)                 Rights of access to code;

(b)                 Rights to distribute code but source code must be distributed concurrently or otherwise made available;

(c)                 Rights to use code;

(d)                 Rights to modify code;

(e)                 Rights to distribute modifications of code;

(f)                  An obligation to distribute modifications to the code on terms of the access regime (ie. if a person distribute modifications, then they must contribute them to the access regime’s code base).  This term is critically important to the proper operation of an access regime as it is the engine which drives the future gifting of improvements by others in the community of interest. 

4.3.               Additionally the access regime must not, subject to 4.2(f) and the specific limitation in 4.2(b), impose any limits on the rights granted.  For example, anyone may access, modify, distribute etc.  Access, use, modification etc can be for any purpose. None of these rights can be conditional on any other circumstances.  The reason is that this introduces transaction costs which block participation.

4.4.               If any of these elements listed in paragraph 4.2 is not present, then the regime would not be an adequate access regime for the purpose of encouraging philanthropy. 

4.5.               A gift of a software licence free of charge would be philanthropic, but would fail to access the compounding benefits to the community and to innovation provided by the provision under an access regime.  This is a “give a person a fish/ give a person the means to fish” issue.  

4.6.               In practice these access rights need to be supported by a means of storing the code and providing visibility of the code base.

5.                   The long term benefits of access regimes

5.1.               The main benefit of a software gift under an access regime is not the value of the software gifted, but in the potential for it to seed the development of a self supporting community which will itself generate its own compounding or cascading philanthropy.  While the seed gift of itself does provide some value, the main value is in the access regime as it generates the greatest social returns.

5.2.               Many of the benefits of an access regime derive from its philanthropic character, its openness, its accessibility and its inclusiveness.

5.3.               Specific Benefits

(a)                 Creation of secondary markets for services:  A collateral benefit of access regimes is that disinterested third parties often have a need for ancillary services in relation to a software product the subject of an access regime (such as training, systems integration, data migration and software development).  When the community using a piece of software reaches sufficient mass, it necessarily creates a secondary market for services in relation to that software.

(b)                 Competition benefits in secondary markets:  As the software the subject of the secondary markets is accessible to all, the barriers to entry in secondary markets are minimal.  This will tend to mean that in theory pricing of services will be the price determined by a perfectly competitive market.  In relation to other software, provision of secondary services presupposes a payment to the software owner so services pricing will commonly include a monopoly pricing component and be above the level determined by a perfectly competitive market.

(c)                 Direct benefits to business:  As seed gifts develop over time they will invariably find applications in business (see the case study in section [5] below).

(d)                 Encouragement of product innovation: access regimes are environments for massively scaled incremental innovation.  Their open nature gives everyone in the community the ability to participate in the innovation process and to observe how it happens in practice.  Access regimes allow the creation and distribution of small innovations which would otherwise be prohibited because of distribution, transaction, marketing or sales costs.  It also allows participation at a level chosen by each of its individual participants.  They can contribute as much or as little as suits their particular circumstances.

(e)                 Encouragement of cross innovation: The open nature of the access regime means that innovations which occur in relation to a given product can be transplanted into other products.

(f)                  Knowledge sharing: The open nature of access regimes means that all knowledge which is embedded in the software (such as the code and the techniques implemented in the code) is available to everyone in the community.  In practice knowledge is distilled from a highly technical level to a more generalist level.  Over time, the knowledge becomes broadly accessible to the non technically trained.

(g)                 Reducing Digital Divide, Encouraging community and participation: An access regime by its nature has no barriers to participation and no barriers to accessing the benefits of software.  Where appropriate, components can be repackaged for use by disadvantaged in the community. 

(h)                 Encouraging community and participation: Participation in an access regime is not limited to software programming, but can extend to usability testing, graphic design, feature set development, documentation creation among others.  This means that an access regime for a software product in fact creates a base for participation on a very broad basis.  The non existent barriers to participation provides a means to empower the disadvantaged and provide them with an opportunity for meaningful participation in society as well as opportunities for achievement, recognition and peer validation.  In some cases this will lead to the development of saleable skills.

(i)                   Minimal gift cost: The nature of the gift means that the donor is not excluded from continuing to use the software the subject of the gift, so the cost to make a donation is comparatively small.  It is in fact equal to the opportunity cost of being able to exclude others from the use of the software.

5.4.               In short, it is my opinion that software access regimes exhibit all of the characteristics to make ideal candidates to promote philanthropy in a way which encourages innovation.  Access Regime communities today operate as microcosms of idealised community business partnerships.

6.                   The Role Government Can Play

6.1.               As I mentioned above software access regimes are already a proven model for community business partnership.  Access regimes do not have the broad level of exposure and understanding to leverage their full potential as a vehicle for philanthropy.  They also face resistance from people who do not understand the model or the philanthropy goals it is trying to achieve.  At the level of minimal involvement therefore, the Government could play an important role by endorsing access regimes as a valuable form of philanthropy and recognising the social benefits provided by access regime gifting.

6.2.               Other ways in which the Government can support access regimes are:

(a)                 Provision of administrative or infrastructure support;

(b)                 Reviewing risk regimes to remove unreasonable participation risks;

(c)                 Providing clearing house facilities for gifted code;

(d)                 Supporting organisations who wish to play an active role in maintaining an access regime;

(e)                 Creating a policy for the access regime gifting of software developed and funded by the Commonwealth Government based on established criteria;

(f)                  Minimising transaction costs involved with participating in access regime schemes;

(g)                 Minimising search costs involved with participating in access regime schemes;

(h)                 Creating structures which permit access regime gifts to enjoy tax deductibility against equivalent cash value.  For example, a clearing house might have charity status for tax purposes.

6.3.               Access regimes work today. However, there is much scope to make them work better and more efficiently, the issues listed in section [6.3] being only a representative sample.

7.                   Case Study of Practical Benefits of Software Gifts under Access Regimes
The GNU Image Manipulation Project (GIMP) www.gimp.org

“GIMP is an acronym for GNU Image Manipulation Program.  It is a freely distributed piece of software suitable for such tasks as photo retouching, image composition and image authoring.

It is an extremely capable piece of software with many capabilities.  It can be used as a simple paint program, a expert quality photo retouching program, an online batch processing system, a mass production image renderer, a image format converter, etc.

GIMP is extremely expandedable [sic] and extensible. It is designed to be augmented with plugins and extensions to do just about anything. The advanced scripting interface allows everything from the simplest task to the most complex image manipulation procedures to be easily scripted.”

http://www.gimp.org/the_gimp_about.html

7.1.               As stated in the extract, the GIMP is a photo retouching program which has been gifted to the community under a specific access regime (known as the “GPL”).  As a result of this gift, anyone with internet access can legally download, install and use the program without being required to pay a licence fee.  Further, anyone who wishes to modify the GIMP is free to do so, subject to the requirement that distribution of their modifications be on the terms of the access regime.

7.2.               A full history of the GIMP, from it’s initial seeding by the gift of code under a specific access regime through the its facilitation of the growth of a community of interest, into its maturation into an industry grade product which is routinely distributed with a number of operating systems is available from: http://www.gimp.org/~sjburges/gimp-history.html.  I understand that one of the early contributors is an alumni from the University of New South Wales computing faculty. [Ed: subsequent to submitting this document my source recanted, I now have no evidence that UNSW alumni were involved Sept 03 ]

7.3.               As it evolved the GIMP community began to engage with interested businesses and has resulted in business working directly with the community.  As a result the GIMP has been adopted for the production of movies in Hollywood, with a specific extension product CinePaint (previously known as Film GIMP) having been created, with development partly funded by business.  CinePaint has been used in a number of feature films including: 2 Fast 2 Furious, Scooby-Doo, Harry Potter, and Stuart Little.  For more information on CinePaint (including a press clippings page) see http://cinepaint.sourceforge.net/

7.4.               The GIMP demonstrates that software gifts under an appropriate access regime:

(a)                 promote the creation of communities;

(b)                 promote the interaction between business and the community;

(c)                 promote, and provide a vehicle for, innovation;

(d)                 provide direct and immediate benefits to the community;

(e)                 provide direct and mid term benefits to business, even in the absence of intention of providing such benefits in the seed gift;

(f)                  promote compounding/avalanching philanthropy from others;

(g)                 generate these benefits from comparatively small seed gifts.

7.5.               The GIMP can be downloaded from:

For Windows users:              http://www2.arnes.si/~sopjsimo/gimp/

Others:                                     http://www.gimp.org/download.html

I can provide a CD on request.

7.6.               I note that I use the GIMP for preparing photos of my son for his web site.  I use it in preference to the software which was bundled with my scanner (and which I therefore paid for).

8.                   Possible questions

8.1.               Does access regime gifting mean communal ownership of the software or giving up any copyright, or intellectual property?

No, an access regime requires copyright to be retained in order for the access regime to make sense/be enforceable.

8.2.               Is this the same as putting code into the public domain?

No.  While this is an example of philanthropy, public domain gifting does not promote an ongoing community and participation.  As it has no requirement for pooling of subsequent innovation it is a philanthropy dead end.

8.3.               Can access regimes be applied to different kinds of copyright work?

Yes.  There is no reason in theory why an access regime approach would not work in respect of, for example, music or literature.  One example of its application to literature is the community encyclopedia known as the Wikipedia (http://www.wikipedia.org/).  The wikipedia is a knowledge resource that is developed by the incremental gifting of small components of fact by individuals.  The wikipedia is an excellent example of the broad application of the model as it is an access regime for information which is enabled by software (wikiwww.wiki.org) which itself was created under an access regime for software.  In this instance a software community has spawned a literature community - collateral philanthropy on collateral philanthropy.

For other examples see: http://www.biomedcentral.com (http://www.biomedcentral.com/1472-6947/2/9) and http://www.drugref.org.

 

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