by Burkhart von Erlach, EUROCONTROL
Free software is certainly not new, but awareness of it fairly new at EUROCONTROL. This presentation covers the current policy of EUROCONTROL and highlights why EUROCONTROL as an international organisation needs to be cautious and is not as free as industry. We'll list a few conditions under which OSS might become more successful in ATM.
First off, let's define the terms we'll be using.
Stallman's work in the 80s defined Free Software, with free meaning "libre", guaranteeing four freedoms: freedom to run the program, freedom to study and adapt the program, freedom to redistribute copies of the program, and freedom to improve the program and distribute the improvements.
In the late 90s E. S. Raymond defined another term, Open Source Software, and articulated why he believed that open source licenses resulted in higher quality, less expensive software.
To be recognized as such, OSS needs to fulfil the following criteria:
The definition of OSS is more detailed and requires more conditions to be fulfilled than free software. One can therefore say that all OSS is free software, while the inverse is not necessarily true.
For our purposes today, we'll define Open Source as software that is built, developed, and enhanced through public collaboration, and which is free in terms of unrestricted access to the source code. This does not mean that it is necessarily free of charge, nor does it mean that it is free of copyright.
Speaking of copyright, copyright is the right created by an author of publications in the literary, scientific and artistic domain, whatever may be the mode or form of its expression (including software). Under continental European law, copyright is automatically created and belongs to the writer/developer of software and is inalienable.
Copyleft uses copyright law in order to ensure that every person who receives a copy or derived version of a work, can use, modify, and also redistribute both the work, and derived versions. This achieved mainly through the General Public Licences, which aims at ensuring that users adhere to the ‘conditions’ listed earlier and to make sure that further developments are made available as open source as well. It should be noted, however, that private copies and developments made for private use and which are not further distributed do not fall under the obligation of redistribution.
Patents are probably the biggest enemy of any open source software movement, as they tend to block the free use of inventions by third parties. The approach to patentability of software is a rather different on both sides of the Atlantic. The United States have taken a more ‘liberal’ approach and are granting regularly patents for software as such. Software patents in Europe have suffered a setback, in early 2005, by the Parliament's rejection of a new directive. The European Patent Convention explicitly excludes the patentability of computer programmes (software) as such. Software is, however, considered to be patentable if it has a technical character.
Finally, we should mention the public domain and freeware. Public domain is any material that is uncopyrighted, i.e. whose copyright has expired, or is uncopyrightable. This can include government publications (depends on the state), factual data (measurements, heights of mountains, telephone numbers etc.), jokes, titles - and ideas and which are available at large. Freeware is software made available free of charge. It is copyrighted by its developer, who retains the rights to control its distribution, to modify it and to sell it in the future. It is typically distributed without its source code, which prevents modification by its users it therefore is certainly not open source.
Now we can take a look at the current situation at EUROCONTROL.
EUROCONTROL as the European Organisation for the Safety of Air Navigation, an international intergovernmental organisation is constrained by a range of rules and regulations most of which are contained in the EUROCONTROL Convention and the Contract and Finance Regulations. In 1995 intellectual property rights guidelines were established and adopted by the governing bodies of the EUROCONTROL Organisation.
The guidelines can be summarized as follows:
In terms of licenses, EUROCONTROL makes available to its Member States and the appropriate ATC entities software, subject to the conclusion of appropriate licence agreements usually free of charge. Restrictive licences are granted to third parties for software, subject to appropriate, the licence agreements shall contain a clause ensuring a return of information (feedback) to be used by the Organisation for its own purposes and subject to the payment of licence fees/ royalty fees.
The Intellectual Property Advisory Group composed by a number representatives of services of the Organisation monitors the application of the Guidelines and discusses cases on IPR requests which lie outside the policy and issues its opinion the Director General.
Since EUROCONTROL is a not profit oriented, selling or commercialising software is therefore not its prime objective. Bearing in mind our special status, EUROCONTROL needs to be a cautious, since it operates under a few specific constraints. EUROCONTROL cannot and does not wish to compete with private industry, since this could and would be seen as unfair competition. In addition, software is very rarely developed from scratch and is often based on pre-existing proprietary software. It is not possible to make such a tool (often involving third party software) available as OSS without facing severe risks of violating third party rights.
While commercializing software and thus patenting are not EUROCONTROL’s prime aim, it is important to ensure that third parties are not patenting software or developments based on our ideas, works and would thus bar the ATM community from using such developments (or allow it only at high prices). Hence, we should pursue a large openness, as this would “destroy” novelty, which is one of the indispensable criteria for patenting.
Let's now look toward the future. Other areas seem to have adhered more quickly to the OSS movement than the ATM environment. Several factors may explain why. ATM is a highly safety critical environment and reluctant to use software which has been developed/modified by third parties. Open source development can be perhaps too quick in an ATM environment which needs a certain stability. Warranty and liability issues are unclear. Current arrangements would no longer be applicable if open source was to be used and this could have an effect on liability/insurance.
Maybe the open source is not as successful as foreseen, because the ATM field requires special skills and expertise which is rather expensive to acquire and may perhaps not be found in large numbers in the open source community.
In addition one has always to bear in mind contractual and/or legal restrictions that hinder a free distribution of software with open sources. There are often pre-existing software/rights which EUROCONTROL is contractually committed to respect, they cannot be put as open source, nor can any development be based on them. There are also legal restrictions, the best known are probably the US Export Restrictions.
Nevertheless, open source software has obviously also advantages, which could prove interesting to ATM. It allows a quick efficient change, especially for bug fixing. Since there are usually no license fees, it is cheap.
There is no vendor lock-in. Finally, the entire issue of background and foreground software would probably become obsolete.
P. Kappertz: In Germany, lots of communities have evaluated costs basing their software on Linux or Windows, and the differences over the lifetime are usually negligible. It's a very short term view if you only look at the acquisition. >Peter>
How could open source work for research and development? In principle nothing would really change from a procurement/contract point of view, as we are entitled to put it into ‘open source’.
It would be, however, prudent and fair to indicate in our contracts to make suppliers aware if we were to adhere to open source movement. There is a certain risk of scaring industry that their intellectual property assets would become available to the public at large. This would probably impact the price and the way software is being developed and made available. Some companies are extremely worried to see their know-how disclosed to competitors.
In any event to be successful and recognised in OSS, the following conditions would need to be met:
As an international organisation independent from industry and/or particular Member States and thus any particular interests other than the safety of air navigation, EUROCONTROL might have a role in such an OSS initiative in ATM.
In conclusion, open source as a concept is quite interesting, and certainly worth further study. However, there still will be no to avoid having to study the implications so as to ensure that no third party rights are violated. EUROCONTROL is starting to direct its attention the open source initiative and it is not by accident that this round table takes place at the EUROCONTROL Experimental Centre organized by our Innovative Research Unit. While policies take a bit of time to be accepted and changed, there is hope that this may happen in the future. The nature of R&D and Experimental Centres would probably be the areas where an open source initiative seems the most promising as a start.
from 21'30" to 30'17" (8'47")
A. Engelfriet: In the past, when IBM developed software for a customer, the customer like EUROCONTROL insisted in having the complete control. It was a problem for IBM because they could not sell it to anyone else. IBM is now basing their solutions very heavily on open source, so now they can not tell their custiomers: "Look, we'd love to give you the copyrights, but most of it is GPL". That's something to take into consideration. If you go more towards open source, your suppliers will base themselves on open source. >Arnoud>
B. von Erlach: You have to bear in mind that software is considered as an asset here. It is in the books with a certain amount of value. Obviously, all the regulations we have aim at maintaining these assets at the moment. >Burkhart>
B. von Erlach: You try not to be. It might be difficult to trace back who has done something wrong. You can not deliberately put ill-functioning material on a site and think you can walk away without liability. However, all the OSS available always exclude liability since it's in an experimental stage; but if it's taken over and maintained by a company, this company should take some responsibility. Up to now, there has never been liability a lawsuit involving OSS, but it might happen in the future. >Burkhart>
H. Lueders: You said that you do not need patents since you are protected as soon as the software is published and the idea is no longer new. But how do you protect your software from being stolen? Do you think that a copyright is a sufficient protection? The technical contribution is the most expensive investment and it's the only element you can not protect with copyright. Wouldn't patent make a lot of sense here? We should not only consider the steeling of the US and talk about China and Japan. Japan has just opened its first patent court on 1st April and based their whole innovation policy on IPR. >Hugo>
B. von Erlach: In general, we are mostly involved in software development. The software we develop at the moment could not be subject to a patent under European law anyway. We are keen to make sure it is at least published, so others can use it as well. This lead to a de facto harmonization. >Burkhart>