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 runn
lang="EN-US">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 (wiki – www.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.
