Roundtable "Potential of OSS for ATM" - Jointly organized by CALIBRE and EUROCONTROL
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OSS and IPR Evolution in Eurocontrol

by Burkhart von Erlach, EUROCONTROL

Overview

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:

  1. Free Redistribution: the software can be freely given away or sold.
  2. Source Code: the source code must either be included or freely obtainable.
  3. Derived Works: redistribution of modifications must be allowed.
  4. Integrity of the Author's Source Code: licenses may require that modifications are redistributed only as patches.
  5. No Discrimination against Persons or Groups: no-one can be locked out.
  6. No Discrimination against Fields of Endeavour: commercial users cannot be excluded.
  7. Distribution of License: The rights attached to the program must apply to all to whom the program is redistributed without the need for execution of an additional license by those parties.
  8. License must not be specific to a Product: the program cannot be licensed only as part of a larger distribution.
  9. License Must Not Restrict Other Software: the license cannot insist that any other software it is distributed with must also be open source.
  10. License Must Be Technology-Neutral: no click-wrap licenses or other medium-specific ways of accepting the license must be required.

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:

  1. Software created, developed and produced by or on behalf of EUROCONTROL (under a contract) become and remain the exclusive property of EUROCONTROL, who is free to seek appropriate legal protection of the intellectual property rights in that software.
  2. Where software is created, developed and produced in the course of a co-operation programmes resulting intellectual property rights would be owned by all parties involved.
  3. Software nowadays regularly builds on pre-existing software (background software) developed by contractors prior to ‘contracts’. Such background software is reused in the production of a deliverable. Of course ownership for such pre-existing software cannot be claimed. But EUROCONTROL has to try to obtain all relevant rights to use and distribute this background software together with the foreground software specifically developed for EUROCONTROL.

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.

R. Schreiner: Isn't it in complete contradiction with what we are discussing today?

B. von Erlach: Very much so, but it's the policy today. We are in an early stage of open source and we are looking in it.

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.

H. Lueders: This means you don't own any patent on software by yourselves.

B. von Erlach: No, we don't.

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.

P. Johnson: Microsoft sends you an agreement saying that the software is warranted for a period of ninety days.

J. Seifarth: "No guarantee for merchantability and/or fitness for any particular use."

B. von Erlach: They do write it down, but I am not sure that in a real Court case, it could be applicable.

J. Seifarth: That's why it says underneath: "Depending on the State, this warranty may not be applicable."

J. Feller: Core to the point, Microsoft Word does not keep airplane separate from each other.

J. Seifarth: No but a SQL database...

J. Feller: That's true!

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.

P. Johnson: As soon as it published, the restrictions do not apply.

O. Robert: They do try to restrict it to certain countries like Iraq...

B. von Erlach: Yes, Iraq, North-Korea, Sudan, Iran, ...

M. Den BESTEN: What about the French restrictions on cryptography?

O. Robert: They were relaxed a few years ago, the consensus being: "Don't tell anybody, and nobody will bother you!"

M. Den BESTEN: It sounds like a very Dutch compromise!

B. von Erlach: The US restrictions are the most known, but they are others.

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 what sense do you think open software is cheap?

B. von Erlach: Well certainly in acquisition: you do not have to buy licence fees.

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.

B. von Erlach: You probably have to look the all life cycle, and make an analysis of the full business case before embarking in open source.

P. Johnson: The reason we're working on it in NATS is because there is no lock-in. We call it "Destiny Ownership".

J. Seifarth: Destiny Ownership!

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:

  1. There needs to be an active, motivated and capably community interested to pursue this.
  2. There needs to be a well known easily accessible forum / portal
  3. The community would need to be guided and administered. This would require an authority which is, and is seen to be, neutral, competent and reactive/proactive.
  4. For the ATM community to enhance credibility and acceptability, any initiative would need the active involvement of ATC entities of the Member States, and possibly industry as well.

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.

Discussion

from 21'30" to 30'17" (8'47")

M. Bourgois: What holds us from putting everything we have done in the past on to open source? Is it a question of fairness to the suppliers?

B. von Erlach: We don't own the entire tool, only parts of it. Theoretically, we could probably do it, but it depends on the pre-existing software.

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.

M. Bourgois: That would be no concern. We want to avoid that other close it. We do not want to close it. So that is not a threat to us.

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.

C. Garcia Avello: What about liability? If you use OSS, are you still liable?

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.

P. Johnson: I have never heard about an OSS maintainer being sued for liability.

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.

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.

F. Gasperoni: If people steal it, then they break the law, the same way they would break the law with a patent, so copyright is sufficient.

A. Engelfriet: I think a patent is only useful to protect against someone that wants to copy your functions.

M. Bourgois: If people steal the software, why not? If they use it, we achieve our goal as European organization.

B. von Erlach: Most of all, once we have paid for a software development, we want to avoid having others selling that software again to us.

Salient points

 
Burkhart von Erlach
 

"Eurocontrol as an international organisation is not as free as industry may be and cannot overnight change its policy, take its software and make it available as open source."

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