Free and open source software in Argentina
| Autor | Pablo Wegbrait |
| Cargo | Abogado. Asociado de Kors, Noviks & Asociados, Argentina. Especialista en derecho de marcas. |
| Páginas | 123-150 |
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Free and open source software in Argentina
PABLO WEGBRAIT1∗
SUMARIO: 1. lntroduction. 2. Free or open source? 3. Is access to s otfware a constitutional/hu-
man rignt under Argentine law? 4. Legal regime. 5. Foss in the Argentine governmental sector. 6.
Enforceability of foss viral licenses under Argentine law. 7. A buoyant third sector. Conclusions
1. INTRODUCTION
As in other parts of the world, free and open source software (FOSS)2 has been gain-
ing acceptance in Argentina over the past years.
FOSS differs from proprietary software . A proprietary software company devotes
substantial monetary and human resources to develop computer programs. The “core” of
those progra ms is the source code, its “written” part, wh ich may be read by the human
user3. Under a propr ietary scheme, rights to the source c ode -which are protected under
trade secret statutes, and copyright laws and treaties-, may only be modified by the author
or rightholder, or with their consent. The rationale behind this business model is that mon-
etary gain results from selling the software because, if users had access to the source code
(or if they could freely reproduce it), they would not buy it from the software devel oper,
who would no t recoup its investment . Under the proprietary scheme, the software us er
acquires a license to use the program for only one c omputer terminal (as a general rule),
and must pay for additional licenses for furthe r use of the software. Moreover , the user
may not access the source code in order to study how it works and/or to detect flaws.
On the contrary, under the FOSS model, users may access the source code in order to
see how it works and/or to improve it. In addition, any improve ments to the source code
1 The author wishes to thank Professors Carlos Correa and Lea Bishop Shaver for their thorough review and
comments during the preparation of this paper.
2 Even though in this work I shall refer to free and open source software as “FOSS”, I will sometimes treat
them separately as “free” and “open source” software”, taking into account the differences between both
movements explained below.
3 The “object code”, instead, can only be read by the computer. Object code is the code produced by a
compiler (a program t hat translate s source code into object code). As ex pressed, prog rammers writ e
programs in source c ode, which consists of instruct ions in a particular computer l anguage. Computers,
however, can only execute instructions written in a l ow-level language called machine language. To get
from source code to machine lan guage, the programs must be transformed by a compi ler. The compiler
produces an intermediary form called obje ct code, which is often the same as or similar to a computer’s
machine language (see: http://www.webopedia.com/TERM/o/object_code.html and http://www.webopedia.
com/TERM/c/compiler.html).
Anuario Andino de Derechos Intelectuales.
Año VII - N.º 7. Lima, 2011
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ANUARIO ANDINO DE DERECHOS INTELECTUALES
DERECHO DE AUTOR
must be given back freely (as w e will see, not freely in the sense of “no compensation”,
but freely in the sense of freedom to access, study, improve and modify the software). At
first glance, it may seem that no m onetary gain results from the FOSS model. However,
nothing could be further from the truth, because the “free” el ement in FOSS only means
that access to the source code must be free, but it does not prevent commercial enterprises
from providin g paid ancillary service s such as software develo pment, implementation,
training and support.
For a developing country like Argentina4, avoiding the cost of proprietary so ftware
licenses ma y represent substan tial savings for a b udget-constrained pu blic sector, also
furthering bro ader access to education, in an era when digital learnin g should certainly
form part of any curriculum.5
It has been f urther und erlined t hat FOSS i mplies sa vings in t he develop ment of
non-d ifferentia ting fact ors, such as operati ng system s. Softwar e is made up of a s e-
ries o f component s, non-diff erentiating and differe ntiating. O nly the lat ter represe nt
a compe titive advan tage for the software de veloper. Whi le in an ope n model such as
FOSS com petitors may co llaborate in the development of non-different iating factors ,
in proprietary settings compet itors shall work separately on non-diffe rentiating factors,
which may result in an unnec essary dup lication of efforts. I n the case of FOSS, co l-
laborat ive work on non-d ifferentiati ng factors may re duce the total co st of ownership
(TCO) of computer programs. I n developin g countries (like Argen tina), wher e labor
cost s are c ompara tively lower, the TCO would otherw ise be allocat ed to payment
of pr oprietar y software royalt ies. In addition, for develop ing countries it may be more
advantage ous to build on ex isting open softwa re platforms as a means of encouragi ng
budding companies (Rizk / El-Kassas: 2009).
Moreover, the adoption of free software may contribute to programs of digital inclusion
carried out by national and local governments in developing countries. Considering that free
software costs less, it may provide a much greater outreach for those programs. Moreover,
free software represents an easily sustainable model for the dissemination of information
and communication technologies in developing countries (UNCTAD: 2004).
4 See page 376 of the United Nations Human Development Report 2007/2008, where Argentina is classified
as one of 137 developing countries; available at: http://hdr.undp.org/en/media/HDR_20072008_EN_Com-
plete.pdf.
5 It is noted that the dissemination of information technologies depends on three basic conditions: (i) access to
certain equipment, software and digital information on the part of users, (ii) the acquisition of the necessary
equipment and software, and (iii) the creation of efficient information technology use capabilities (Correa:
1999). It could be argued that the cost savings generally resulting from FOSS use enables broader access
to information technologies, particularly crucial for developing countries such as Argentina.
Furthermore, on July 24, 2009, t he MERCOSUR summit held in Asunción, Paraguay, iss ued a declara-
tion favorin g free software, p roposing MERCOSUR governments to ado pt policies fosteri ng free and
open technologies such as free software (which guarantee “digital inclusion”), as well as information and
communication technology polici es in public education that protect regional techn ological sovereignty,
through the use of applications based on free software and non-paid access to web-based resources (see:
http://www.solar.org.ar/spip.php?article617). The MERCOSUR is a common market formed by Argentina,
Brazil, Paraguay and Uruguay (see: http://www.mercosur.int).
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