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Open Standards and Intellectual Property Rights

Trond Arne Undheim, PhDDirector Standards Strategy and Policy EMEA

Licensing Executives Society, Amsterdam, 29.09.08 http://www.2008.les-benelux.org/

European Commission

European Parliament

Member States The Council

The European Standards Policy Environment

• Benchmarking• Best practice• Legislative initiative

• ITRE-committee

• 27 Member States• EU27+• Influence in Asia and

Latin-America

• Decision making• Regulations• Directives• Decisions

EU

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“Opting for open standards is a very wise business decision indeed.”

Nelly KroesDG COMPETITION

Why Open Standards are important

• Enabling innovation (TCP/IP).• Boosting transparency (PDF).• Avoiding lock-in (ODF).• Creating market stability (HTTP).• Ensuring efficiency and economic growth (Internet).

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“The Internet is fundamentally based on the existence of open, non-

proprietary standards.”

Vint CerfFather of the Internet

The Interoperability Imperative

• Open standards facilitate and ensure interoperability.• Internet software standards – Created in new breed of global, informal standards venues. – Different from previous IT or hardware standards.

• My software needs to talk to your software.

Characteristics of Open Standards

The controversial EIF 1.0 (2004) definition:

1. “Adopted and maintained via an open process in which all interested parties can participate,

2. Published and available freely or at a nominal charge,

3. For which the intellectual property – i.e. patents covering (parts of) the standard – is made irrevocably available on a royalty free basis,

4. There are no constraints on the re-use of the standard”.

Source: European Interoperability Framework, European Commission IDABC Programme.

Updates in the draft EIF 2.0 (2008)

• Maintains a clear definition of Open Standards and specifications.

• Enhances uniformity among National Interoperability Frameworks across EMEA and beyond.

• Recognizes there is an “openness continuum”. • Handles life-cycle issues, i.e. emerging standards.

• But: the governance model and tools to ensure compliance are still relatively weak.

European Standardization

• Legal base – Council Decision 87/95 (ICT standardisation in public sector).– Directive 98/34 (formally recognised standards organisations).

• European standards organizations (ESOs)– CENELEC (1959) – Electro-technical standards.– CEN (1961) – European pre-standards and standards in ICT.– ETSI (1988) – Telecom standards.

The Ideal Software Standards Ecosystem

Global

Royalty free Disclosed ex ante

• Healthy process

• Non-RF as the exception

• Certainty• Late disclosure as

the exception

• Wide implementation• Actual interoperability

Open

Transparent Patent Licensing

• Prevent IPR obstacles in software industry.– Prefer ex ante policy, so we can know the terms early.– If disclosure is not made, we favor default royalty free.– RAND is too vague, gives patent holders ex post leverage.

• Less burdensome rules for standards participation.– Standards participants are not lawyers. – All users should have de facto access.

• Ensure interoperability by open standards.

Conditions On The Ground

• Standards edging higher on government agendas– Interoperability Frameworks in many EU Member States.

• Denmark and The Netherlands leading the way. – EU considers standards reform

• Has 20 year old regulatory framework.• Cannot reference fora/consortia standards in legislation.

• Some actors resist change – European Standards Organizations (CEN/CENELEC) – National Standards Organizations (DIN, AFNOR, BSI)– Still selling standards. Need a new business model.

Conclusion

• Open standards are market-led activities– Governments must reference fora/consortia standards.– We must all help to simplify the standards environment. – We must try to prevent IPR obstacles by transparency.

• In software, ex ante disclosure is important. If not in place, default royalty free can ensure interoperability.

• Open standards must be widely implemented – usage means efficiency, effectiveness – for all actors.