Open Standards and Intellectual Property Rights Trond Arne Undheim, PhD Director Standards Strategy and Policy EMEA Licensing Executives Society, Amsterdam, 29.09.08 http://www.2008.les-benelux.org/

The European Standards Policy Environment European Commission European Parliament Member States The Council Benchmarking Best practice Legislative initiative ITRE-committee 27 Member States EU27+ Influence in Asia and Latin-America Decision making Regulations Directives Decisions EU

Benchmarking

Best practice

Legislative initiative

ITRE-committee

27 Member States

EU27+

Influence in Asia and Latin-America

Decision making

Regulations

Directives

Decisions

<Insert Picture Here> “ Opting for open standards is a very wise business decision indeed.” Nelly Kroes DG 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).

Enabling innovation (TCP/IP).

Boosting transparency (PDF).

Avoiding lock-in (ODF).

Creating market stability (HTTP).

Ensuring efficiency and economic growth (Internet).

<Insert Picture Here> “ The Internet is fundamentally based on the existence of open, non-proprietary standards.” Vint Cerf Father 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.

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: “Adopted and maintained via an open process in which all interested parties can participate, Published and available freely or at a nominal charge, For which the intellectual property – i.e. patents covering (parts of) the standard – is made irrevocably available on a royalty free basis, There are no constraints on the re-use of the standard”. Source: European Interoperability Framework, European Commission IDABC Programme.

The controversial EIF 1.0 (2004) definition:

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

Published and available freely or at a nominal charge,

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

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.

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.

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

Healthy process

Non-RF as the exception

Certainty

Late disclosure as the exception

Wide implementation

Actual interoperability

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.

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.

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.

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.