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OPEN SOURCE SOFTWARE, IPR AND STANDARDIZATION

The European Commission, in its Communication on Setting out the EU approach to Standard Essential Patents, has committed to working with stakeholders, open source communities and standards development organisations. 

A survey have been launched, involving relevant communities and aiming at providing inputs to the study of the European Commission on the “Interaction between Open Source Software and FRAND licensing in Standardisation“.

The study was important to provide hard facts evidence for the public policy measures in standardisation following the principles of the Communication on the ICT standardisation priorities for the Digital Single Market (2016) but also to contribute to the goals of the Communication on Setting out the EU approach to Standard Essential Patents (2017).

The objective of this study was to identify possible commonalities and barriers for interaction between standardisation and open source processes.

In particular, the objective was to clarify the role of open source in the context of standard setting, in particular its interplay with FRAND (Fair, Reasonable And Non-discriminatory) licensing.

Amongst other research items, the study includes a set of practical case studies and a stakeholder workshop.

Some of the questions asked during the survey looks to me particularly relevant for ETSI in the context of a reflection around the IPR scheme to use and how to profit from the evident benefits of Open Source Software in standardisation activities.

In particular:


USE OF INTELLECTUAL PROPERTY RIGHT

Did your organisation apply for, register or claim the following intellectual property rights (IPRs) between 2015 and 2017?

 NO YES
Global application of patent families
Global registrations of trademarks
Claiming of copyright (e.g. by proof of the creation date or the © symbol or open
source licenses)
Global registrations of industrial designs
Global registrations of domain names
Other forms of IPRs, please specify

Did your organisation license (in/out, sell, purchase, own) the following types of patent families between 2015 and2017?

 NO YES
Own patent families licensed out or sold to third parties
Patent families of third parties licensed in /bought (excl. standard software)
Claiming of copyright (e.g. by proof of the creation date or the © symbol or open source licenses)
Patent families that refer to standards or open source
Patent families declared to SDOs as potentially essential
Revenue-generating standards-essential patent families
Patent families in your portfolio implemented in open source software projects and products
Other forms of licensing (e.g.cross licensing), please specify

INTERACTION BETWEEN OSS AND STANDARDISATION

Do conflicts occur between the following copyright licenses and licensing models in standardisation (in particular Fair Reasonable And Non-Discriminatory conditions)?

 NO YES
MIT License
GNU General Public License (GPL 2.0)
GNU General Public License (GNU) 3.0
Apache License 2.0
Open Air Interface (OAI) Software Alliance License Model
ISC License
BSD License 2.0 (3-clause, New or Revised) License
Artistic License (Perl)
GNU Lesser General Public License (LGPL) 2.1
GNU Lesser General Public License (LGPL) 3.0
Eclipse Public License (EPL)
Microsoft Public License
Simplified BSD License (BSD)
Other licenses, please specify

If you have experienced conflicts between the chosen OSS and the licensing models in standardisation, how have these been solved?

 Never Rarely Sometimes Often Always
Negotiation to find a solution
In case of no solution, withdrawal from OSS
In case of no solution, withdrawal from standardisation
Strict separation between OSS and FRAND licensing
More flexible IPR models in SDOs (e.g. allowing case by case IPR schemes)
More flexible definition of OSS
Use of copyright-only OSS licenses explicitly excluding patent license rights, which have to be negotiated separately
Litigation at court
Alternative dispute resolution
Other solutions, please specify

How do you assess the effectiveness of the following approaches of collaboration between standardisation and OSS?

 Very low Low Medium High Very high
New processes to integrate OSS in standardisation
New governance and conflict solutions models
SDOs have to be more flexible in their patent policy
SDOs have to change patent policy to royalty free
More flexible definitions of OSS
OSS licenses should include FRAND-based patent grants
Use of copyright-only OSS licenses explicitly excluding patent license rights
Strict separation of SDOs and OSS
Direct combination of SDOs and OSS
Other approaches of collaboration, please specify

These questions could guide our reflection and help ETSI to define IPR and license schemes able to cope with everyone’s needs and concerns.

The study will be finalized in 2019 and the final report will be published by the Joint Research Centre of the European Commission.

I look forward to read this report and (hopefuly) use it as a major input for our internal discussions in ETSI 😉

Stéphane Amarger

Innovator by nature...

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