Tensions between IPRs and ICT standardisation – Need for action on all sides

On Monday this week I attended the workshop jointly organised by the European Commission and the European Patent Office (EPO) on “Tensions between Intellectual Property Rights and the ICT standardisation process: reasons and remedies”. It was a very interesting conference with an impressive set of speakers. Regarding the agenda this conference built nicely on the one on IPRs and ICT standardisation of November 2008 looking more closely and some of the issues that had then been identified.

Very briefly, I noted the following seven points as key items coming out of the discussion. They are all very important and I consider this an excellent result of the conference:

1. Problem areas do exist and there is need for action both from public authorities, from standards bodies and from the EPO.
   
2. Progress is made in several organisations regarding improved IPR databases and the collaboration with EPO on this. The ETSI DARE project for restructuring the ETSI database was given as a prime example.
   
3. The EU patent would be a significant step forward. It is also one example for government action.
   
4. The concept of a License of Right is worth pursuing. It would be viable method for ensuring the availability of patents for standardisation. There were several supporter of this in different panels.
   
   
5. The topic of ex ante declaration of licensing terms remains disputed. Yet, there seems to be a dividing line between software standardisation on the one hand and telecommunication on the other hand.
   
6. Regarding open source the key issue is not to use and implement open source technologies in proprietary offerings but it is for open source communities to implement standards that are available only at FRAND terms.
   
7. The idea for a Software Interoperability Directive was brought forward that governs that standards for software interoperability should be available under terms and conditions that allow their implementation in open source.

There was one presentation that – to my mind – did not quite fit into the respective panel but that was interesting for for another reason. A gentleman representing a consortium (that he several times called himself a “club”) explained that this “club” produced a specification and then collaborated with Cenelec for transposing it into an EN. So far so good. But the representative clearly stated that his consortium, which is a for-profit organisation, uses this standard for doing certifications. This is frightening and, in fact, in my mind to some extend an abuse of standardisation. This example once again illustrates the justification of the requirement for Open Standards that they are developed in non-profit organisations.

The Commission and EPO announced that they are going for a follow-on conference next year with a focus on the international dimension which as not covered by the agenda this time.

I believe that this Monday's conference, however, produced already a number of results that are critical items and that the Commission and EPO will start working on right away. My seven points above might give an indicator of those critical items. And perhaps some intermediate results can already be presented at the conference next year.

A further outcome, out of my perspective, is that the issues identified are not crucial for the revision of the European standardisation system that has been ongoing since 2006 and is supposed to be finalised by mid 2011. And I'd like to repeat: the ICT sector is in urgent need of reforms concerning the EU ICT standardisation policy as proposed in the Commission's ICT White Paper of 2009.

Open Standards for eGovernance

For more than half a decade Europe has played a leading role globally in defining framework conditions for eGovernment services provision. The European Interoperability Framework (EIF) version 1.0 was a breakthrough document in this respect. Essentially, it set three clear directions:

1. Openness must be a key principle in eGovernance;
2. eGovernment services must be built on Open Standards and the term Open Standards was clearly defined;
3. Open Source needs to be considered on equal footing with proprietary offerings.

These rules and directions should not come as a surprise to anyone. eGovernance and eGovernment services are – bluntly speaking – about the internet, about offering citizens and businesses information and services over the internet. Openness governs the internet and the web and Open Standards are at the core of it. Industry has broadly agreed on the respective open conditions in the relevant global standards bodies such as W3C, IETF or OASIS that deliver Open Standards.

The EIF 1.0 has had a huge positive effect. It triggered the development of National Interoperability Frameworks in the EU Member States following the basic directions of the EIF regarding openness and interoperability. And EIF 1.0 influenced other countries and regions outside the EU. They followed Europe's leadership in developing open frameworks. In this respect, EIF 1.0 has been a very successful document with strong global impact.

Now last week India adopted its “Policy on Open Standards for eGovernment”. It follows the same principles as the EIF 1.0. And the Indian Policy also gives a clear definition of the characteristics of an Open Standard:

“An Identified Standard will qualify as an “Open Standard”, if it meets the following criteria:

4.1.1 Specification document of the Identified Standard shall be available with or without a nominal fee.

4.1.2 The Patent claims necessary to implement the Identified Standard shall be made available on a Royalty-Free basis for the life time of the Standard.

4.1.3 Identified Standard shall be adopted and maintained by a not-for-profit organization, wherein all stakeholders can opt to participate in a transparent, collaborative and consensual manner.

4.1.4 Identified Standard shall be recursively open as far as possible.

4.1.5 Identified Standard shall have technology-neutral specification.

4.1.6 Identified Standard shall be capable of localization support, where applicable, for all Indian official Languages for all applicable domains.” (p. 2)

In addition, the Indian Policy contains some provisions in case Open Standards are not available for a given purpose so that, for instance, “RAND-based” standards can be used for some time. This is pretty reasonable; yet, the default is for Open Standards.

I very much like the clarity, simplicity and the straight-forward approach of the Indian Policy. It provides a proper framework and thus creates a clear basis for everyone to operate on. Like with the EIF 1.0 this framework builds on the common practice of the internet and the world wide web and the Open Standards used there. And its scope is clearly on eGovernment services. Nobody needs to be surprised by it; nobody needs to be afraid of it.

Reading this Indian Policy, though, makes me wonder once again what the debate about the revision of the EIF that has been ongoing for almost 3 years is actually about. The apparent attempts to delete the clear commitment to openness from a revised EIF seem to be more than anachronistic looking both at National Interoperability Frameworks and at other regions in the world like India but also looking at the common practice applied in the context of the world wide web. In effect, Europe blocks itself from moving ahead in implementing eGovernment solutions and delivering interoperable eGovernment services to the citizens and businesses in Europe. And we witness how other regions pass by following the very principles that EIF 1.0 had laid down have a dozen years ago.