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Devil's Advocate: A radical rethink of intellectual property
"There is no reason in principle why we cannot make radical changes in the way in which software is protected."

By Martin Brampton

Published: Tuesday 06 January 2004

Martin Brampton kicks off the year by proposing a radical approach to intellectual property protection and software. Could this be a way forward...?

Over the season of goodwill and the time for new resolutions, I have been wondering how to make the IT world a better place. Often, I have bemoaned the tendency for a market leader to dominate any software sector, leading to proprietary lock-in and slowing genuine innovation. The dependence of the big software companies on intellectual property rights gave me an idea.

The principle behind intellectual property rights is that those whose effort creates something desirable should have the ability to seek a reasonable return on their work. In reality, it is much more complicated. Few products are wholly innovative. Most rely heavily on past ideas. Moreover, we are entitled to ask about what constitutes a reasonable return.

After all, property rights are not something we are naturally born with. They are something that we, as a society over hundreds of years, have developed for our mutual benefit. By the same token, we are free to redefine exactly what we mean by property rights.

Now it is difficult to juggle with complex sets of rules. To make progress, it seemed to me that we needed a simple step. So I propose that we introduce a new rule saying that any software that takes more than half of a market sector should have its protection limited. To make this effective, the software in question should be made freely downloadable, subject to something like the present open source contract that limits commercial exploitation.

Before anyone shouts “Unfair!” let’s look at some likely implications. The results might well be surprising. For a start, even when software is available for nothing, many organisations prefer to buy it. Linux can be downloaded free. Yet many packaged Linux distributions are sold. Conversely, some sectors of the software market have been largely free. Web browsers have competed for market share, yet almost all have been available without any charge.

Then there is the question of related services. Especially in large organisations, software that has no support is of little use. Even if the software does not cost anything, there will be a need for a variety of related services. It is impractical to suppose that services can be free in most circumstances, since people need to be remunerated for their time. So services would still be a viable source of revenue even where the software was given away.

It would be interesting to see how software vendors would behave under this scenario. One strategy would be to try hard to keep market share below 50 per cent. One way to do that would be to encourage open standards that made it easier for rivals to take at least some market share. Another way would be to specialise in a particular section of a market, say a vertical industry sector.

Another strategy would be to aim for maximum market share and accept that free copies of the software would be legitimate. This is obviously an attractive strategy in some cases, or we would not have the many “free” products that already exist. A further alternative would be to aim to split software companies into smaller units that could compete with one another, thus reversing the trend to giant software conglomerates.

Outcomes would certainly be different across the world. In rich countries, people are willing to pay for a high level of service. In less developed countries, free software that demanded a good deal of local work would be seen as enormously attractive. We might see quite contrary results in the US and in China. That is perhaps as it should be.

No doubt the basic idea needs refinement. But there is no reason in principle why we cannot make radical changes in the way in which software is protected. The big software companies are not the only people to have a legitimate interest in the question. And if changes worked well for software, maybe we could find ways to implement similar ideas in other sectors?