Innovation within companies, once confined to R&D departments, is now opening up to the outside world. Open Innovation has turned the traditional concept of innovation on its head. Theorised by Henry Chesbrough in 2003, Open Innovation focuses on the ability of companies to benefit from the contributions of external players. Innovation is no longer limited to a single organisation: it is about “creating better with and thanks to others”. Open innovation thus makes it possible to take advantage of the “strengths of the multitude”, with each player increasing its capacity to benefit from the creativity, intelligence and contributions of others. Open Innovation also promotes the breaking down of boundaries within organisations themselves, and the end of innovation in silos.
This movement towards openness, which characterises Open Innovation and is being increasingly adopted by organisations of all types, is the result of the globalisation of trade, and has accelerated sharply with the development of digital technology and the spread of the Internet. The increase in the rate at which innovations are produced and the reduction in product life cycles have also contributed to the development of Open Innovation.
The benefits of Open Innovation for companies are many: strengthening their relationship with their customers or their community, conquering new markets, accelerating their growth, outsourcing and sharing the risks associated with innovation, improving their brand image, etc.
Open innovation raises a number of legal issues, particularly in terms of the management and valuation of intellectual property assets, and is therefore of particular interest to lawyers. They can contribute to the adoption of a specific strategy within their organisation to facilitate, or even automate, the implementation of Open Innovation.
The 8th edition of EOLE focuses on the position of lawyers in relation to Open Innovation, and the role and place of open models in this dynamic. The first topic addressed by the speakers was the links between Open Data and innovation. While Open Data is a fashionable subject, it is often reduced to public administrations, when in fact it is a much broader and long-standing issue. Furthermore, while there are strong links between Open Data and innovation, this openness needs to be accompanied by a formalised strategy to enable innovation.
Finally, the speakers also touched on two subjects that are insufficiently addressed when it comes to open innovation strategy: interfaces and infrastructures. Yet these issues are extremely important, as they help to foster innovation by getting people to work together.
Open Data & Innovation, by Malcolm Bain (ID Laws)
Open Data is about openness and transparency. Although an Open Data policy can be implemented in both the private and public sectors, the term is frequently used to refer to the provision of data by public administrations. In Europe, the PSI (Public Sector Information) directives place obligations on Member States in terms of the re-use of public sector information. In France, the various laws that have been passed in this area are based on the CADA law of 1978, and aim to expand the range of public information that must be made accessible.
Nevertheless, implementing this obligation is proving complicated for the administrations responsible for it. In the case of Belgium, Loïck Gérard has identified four factors that may explain the country’s delay in opening up its data: its federal nature, lack of political interest, lack of guidance from public administrations and lack of unification. As Belgium is a federal state, the transposition of the PSI directives falls within the remit of several different legislators, resulting in as many different laws and user licences. The lack of political interest can be explained by the fact that public administrations do not yet see the benefits of Open Data. Many do not really know what Open Data is, and have no one to turn to for help. Finally, Belgium also suffers from a lack of unification: although a federal Open Data portal has been created, it only includes a fraction of the data published by the regions and municipalities. To access all the data published by Belgian public administrations, you have to go to different portals, which makes it more difficult to access this data.
While the link between Open Data and innovation seems obvious, we must not fall into the trap of thinking that opening up data will necessarily lead to innovation: simply opening up data does not magically create innovation. Public authorities need to stop thinking in terms of the amount of data they put online, and think about the ecosystem that is created, as well as the quality of this data, which needs to be up-to-date and useful. The city of Barcelona is a good example of this: it has succeeded in creating an ecosystem in which 55 companies actually use the data it has put online. A “Smart City Campus – 22@” has been set up to develop innovations linked to Smart Cities.
Open Data also raises legal questions: can the data that is disseminated in this way be protected? While data itself is not protected by law, databases are protected by a sui generis right: the right of database producers. A special licence has been created to meet the specific needs of databases: the ODbL (Open Database License). This transposes the notion of copyleft, requiring that any derived database be maintained under the same licence, so that it can be accessed, modified and reused by anyone.
Finally, it should be emphasised that the balance of power here is in favour of public administrations. Unlike Open Source, where isolated individuals can create software and have a major impact on the community, Open Data requires a very large amount of data to be aggregated. Collecting this data requires an effort that an individual – or a small group of individuals – is not in a position to make. It is therefore crucial that public administrations take account of the role they have to play.
Strategy, by Benjamin Jean (inno³)
How can open innovation be integrated into an organisation? The exponential increase in contractual relationships is the natural corollary to the increase in collaboration that necessarily results from the implementation of an Open Innovation strategy. So, because Open Innovation is not a one-off phenomenon, the implementation of an Open Innovation strategy must include an appropriate legal framework, enabling this collaboration to be framed and systematised.
To ensure that the legal aspects do not act as a brake on openness and collaboration, they need to be thought through in advance. This may involve creating a legal toolbox to bring together all the documents, model contracts, advice, etc. that will be useful on a day-to-day basis to all the members of the organisation in the practical implementation of the open innovation policy. It will also be useful, in partnership relationships, to systematise clauses enabling the implementation of Open Data, Open Source, etc.
As a result, the way in which intellectual property assets are managed needs to be completely rethought: while intellectual property has traditionally been viewed exclusively in terms of protecting the company’s intangible assets, Open Innovation marks a paradigm shift. Companies are now moving from a strategy of protection to one of enhancing the value of their intangible assets, through collaboration.
Innovation must no longer be viewed solely in terms of the intellectual property it generates. The number and value of patents filed should not be the only performance indicators used by organisations; such a measure of innovation is irrelevant, and all the more so in a context of open innovation. However, this does not mean that patents should be neglected. They must be taken into account in the collaboration strategy, and can lead to the conclusion of specific licences.
In addition, the open innovation strategy must include the definition of distinct and complementary strategies for Open Data, Open Source, Open Hardware, Open APIs, etc. There are many possible combinations of these different models, but they all require a certain abandonment, a letting go of control, which is the only way to encourage contributions from third parties and therefore, ultimately, the evolution of the technology and collective innovation.
Open interfaces and innovation, by Philippe Laurent (MVVP)
The term “Open Interfaces” refers to the transposition of the Open Source model to interfaces. In the broadest sense, interfaces refer to any device enabling communication between two systems. In IT terms, this mainly means APIs (Application Program Interfaces), formats and protocols. In the context of open, and therefore collaborative, innovation, it is essential that these so-called “software” interfaces are open, to enable interoperability. Knowledge of a product’s interfaces guarantees interoperability and reduces lock-in effects. In fact, interoperability is one of the major challenges in the IoT (Internet of Things) sector: it can be argued that this sector will only be able to develop if there is a high level of interoperability between processes and equipment, so as not to close off the market and allow products to reinforce each other.
Interoperability is a subject that Europe is addressing, as demonstrated by the publication of the INTILA licence. The INTILA licence promotes interoperability and confidence by providing a legal framework for non-standardised specifications.
This notion is therefore very present in the field of hardware, and particularly Open Hardware (or Open Source Hardware in French). Open hardware is hardware whose specifications are freely accessible, so that anyone can study, modify, build and distribute these specifications or hardware based on these specifications. Publishing the technical specifications of a product – and doing so in a clear and documented form – helps to strengthen interoperability around the product.
The PlugElec system developed by Sibelga, the electricity and gas distribution network operator for the Brussels region, is an example of the implementation of an Open Hardware strategy with the aim of developing interoperability. Starting from the simple observation that electricity meters were too expensive to manufacture and modify, Sibelga decided to develop the specifications for a new electricity meter: PlugElec. As part of its Open Hardware approach, Sibelga brought together all the players in the ecosystem to draw up the technical specifications for the new PlugElec meter. To ensure that this documentation is distributed as widely as possible, Sibelga then placed these technical specifications under a specific Open Hardware licence. As no existing Open Hardware licence met their criteria – in particular that of a strong copyleft – Sibelga drafted a specific licence. This is available on their website at the following address: http://www.sibelga.be/openhardware/fr. By taking this step, Sibelga is strengthening vertical interoperability, i.e. the ability of players in the ecosystem to innovate around this new electricity meter, by creating compatible products or systems. The aim was to create a new standard, thereby reducing the production costs of electricity meters.
The contract is also an interface: it is an interface between two people. Can it too be described as an interface that fosters innovation? Open licences, for example, are contracts for the transfer of intellectual property rights that grant freedom to users, and thus encourage innovation.
Infrastructures and innovation, by Karen Sandler (Software Freedom Conservancy)
How can organisations wishing to implement an open innovation strategy create an environment conducive to innovation? There are two options: create an internal platform, integrated into the organisation itself, or use an external platform. Their choice will be guided primarily by the level of trust that stakeholders have in the organisation itself. Organisations that enjoy a high level of trust from their ecosystem, such as universities for example, will be able to create an internal platform, while others will tend to turn to external, more neutral structures.
The relationship between the company and the community that will be federated around an open innovation project also needs to be thought through. The company should not want to control the community, but should seek to encourage and motivate it. This can be achieved by organising events (hackathons, meetups, etc.) that generate innovation by enabling participants to collaborate with a wider environment than the one with which they are used to interacting. To achieve this, it will be important to consider the legal issues associated with these events in advance, and in particular the attribution of intellectual property rights to participants’ contributions.
It is also important to ensure that there are no barriers to entry that would prevent new players from joining the project, especially when the project has been running for some time: in this case, all the information relating to the project must be made available to the players so that everyone has the same level of knowledge. The LibreOffice project, led by The Document Foundation and represented by Italo Vignoli, is a model of transparency. All documentation relating to the project is available online (product documentation as well as documentation relating to the development processes themselves: code writing guide, tests, etc.).
The structure of the Software Freedom Conservancy, which aims to develop and promote Open Source projects, has two interesting features that help to explain its success: firstly, it has chosen to be a not-for-profit organisation (charitable entity) and to make it very easy for projects to enter and leave the structure, in the manner of an incubator.