Government body says developing countries need open source

Proprietary software is too expensive, many shrink-wrap licences should be considered void, and reverse engineering of software is essential to help relieve poverty, a commission claims

Developing countries should look at open-source software and should avoid legislation designed to stop anti-copying measures being circumvented, a government-backed group of influential experts will warn on Monday.

In its report, called Integrating Intellectual Property Rights and Development Policy, the Commission on Intellectual Property Rights will encourage developing countries to take a stand against unfair copyright measures affecting online media, and against software pricing that puts products beyond the reach of many citizens.

The commission, an independent body set up by the UK government in 2001, includes on its board Professor John Barton of Stanford Law School and Professor John Enderby, vice president of the Royal Society. Other members include Daniel Alexander, a barrister specialising in intellectual property law, Professor Carlos Correa of the University of Buenos Aires in Argentina, and Dr Ramesh Mashelkar, director general of the Indian Council of Scientific and Industrial Research and secretary to the Indian government's Department of Scientific and Industrial Research.

The report covers many areas of intellectual property, but the recommendations on copyright, software and the Internet will add fuel to debates over the use of open source in government and over copyright protection mechanisms.

"Developing countries and their donor partners should carefully evaluate the costs and benefits of using low-cost and/or open-source software products," the report recommends. Publishers of software, as well as of conventional and online materials, have a duty to review their pricing policies to help reduce unauthorised copying and to ease access to their products in developing countries, the commission believes. "The cost of software is a major problem in developing countries and it is the principal reason for illicit copying," it notes.

Part of the problem with proprietary software, says the commission, is that publishers often make no allowance for markets in developing countries where it notes many people live on less than $2 (£1.30) a day.

But the report goes further than other recent studies on the use of open-source software in government, and recommends that to help adapt software to meet local needs, developing countries should ensure that their copyright laws allow reverse engineering of software programs "while complying with relevant international treaties they have signed."

The commission cautions developing countries against some forms of international treaty; in particular the WIPO copyright treaty, which many countries are pressured into signing in return for monetary aid from organisations such as the World Bank and the International Monetary Fund. The WIPO Copyright Treaty, while being less restrictive than laws such as the US Digital Millennium Copyright Act and the EU's Copyright Directive, which is due to be enforced in the national laws of member states next year, still "contains provisions of concern in developing countries," says the commission.

In the US, the Digital Millennium Copyright Act has received a great deal of criticism for making it illegal to circumvent technological protection, even when the purpose of circumvention does no violate copyright laws.

Developing countries are advised against passing similar laws, and the commission goes so far as to advise them to declare void shrink-wrap software licences in some cases.

"Internet users in developing countries should have fair use rights on available information, including creating and distributing printed electronic copies in reasonable numbers for educational and research purposes and making reasonable excerpts in commentary and criticism," says the commission. "If suppliers of digital information or software attempt to restrict fair use rights, either through contract provisions or by technological methods of protection, the contract provisions may be treated as void."

In particular, says the commission, developing countries should allow their citizens to circumvent copyright protection mechanisms and should not follow the example of the US and the EU by enacting laws that ban such practices.

Even weak levels of copyright enforcement have had a major impact on diffusion of knowledge and knowledge products throughout the developing world. "Stronger protection and enforcement of copyright rules may well reduce access to knowledge required by developing to support education and research, and access to copyrighted products such as software," notes the commission. "This would have damaging consequences for developing their human resources and technological capacity, and for poor people."

The report is to be formally launched on Monday at an event in Geneva: speakers will Clare Short MP, the UK secretary of state for International Development; Dr Supachai Panitchpakdi, director general of the World Trade Organisation; and Dr Kamil Idris, director general of the World Intellectual Property Organisation.

The full report is available at the Commission's Web site here.


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