Defining “Open
Standards”:
A Comparison of
Policy and Practice
Steve Mutkoski
Senior Standards Strategist
Overview
• Initial observations
• Governments have spent considerable time trying to
articulate what they like about standards
• Sometimes articulated as a debate about “Open” vs.
Closed or Proprietary standards, lots of discussion about
what might or might not be an “Open Standard”
• Key Questions
• How do these policy debates line up against what the
standards community is doing?
• More importantly, what underlying objectives do
governments seek to address via these policy tools?
• Do/can these policy tool achieve such objectives?
Flow of Paper
• Section I: The definitional debate
• Review prior literature, including West, Krechmer, etc.
• Culled list of five “attributes” which are common
• Section II: Three recent policies: UK, India and EU
• Use attributes as common frame of reference
• Section III: Comparing Policy with Practice
• Focus on one attribute (IPR licensing)
• Illustrates disconnect between Policy and Practice
• Section IV:
• Raises challenging questions about what governments
are trying to achieve
Section I
• Prior Research
• Ken Krechmer- 10 criteria for an “Open Standard”
• Per Andersen- 9 criteria
• Joel West- 4 criteria: (1) access or participation
“permeability” (2) nature of decision-making process (3)
specification rights and (4) IP Rights access
• Analysis
• Starting point: West’s criteria largely condense and
combine various of Krechmer’s elements
• Discarded elements related to “market success” of
standard and interoperability of implementations
• Attributes are not binary but instead exist on a spectrum
Section I: Five Attributes
•
“Permeability” of the SSO creating the specification to stakeholders: which is related to
whether there are any membership limitations, such as only companies may join or only
invited parties may join, as well as membership requirements such as fees that might
effectively limit who can become a member.
•
“Transparency” of process, due process and related decision-making and governance
concepts at the SSO creating the specification and maintaining it over time: which is
related to whether the governance process is well documented, to what extent it embodies
some traditional notions of fairness and the specific mechanisms that it has in place for
reaching decisions, such as simple majority, super majority or consensus.
•
“Structural attributes” of the organization creating and maintaining the specification:
which is related to issues such as whether the entity operates on a nonprofit vs. for profit
basis
•
Limitations or restrictions on accessibility to the specification: which is related to whether
there are any per copy fees that need to be paid to access a copy of the specification
•
Licensing terms for patent claims that are essential for implementing the specification:
which is related to whether a royalty must be paid (and other terms must be agreed to) for
access to essential patent claims
Section I: Complexity of Attributes
• “Permeability” attribute
• Interplay between membership fees, specification fees
and business models
• Decision-making and Governance attribute
• Majority, supermajority, veto power?
• IPR attribute
• What does “Royalty Free” mean?
• How does this attribute map against real world SSO
practice?
• Highlights a key gap between policy maker aspirations
and real world practice
“Royalty Free”
• What does “Royalty Free” mean in this context?
• Any standard where there is affirmative proof that nobody
will seek a royalty?
• Any standards created in SSO where SSO IPR policy
disallows inclusion of any royalty in licensing terms?
• Any standards but those where there is affirmative proof
someone is seeking a royalty?
• Other possible meanings?
• Important considerations
• Which of these are measurable?
• How do these various possible definitions map onto the
standards that we (and governments use today)?
• What are the forward looking impacts of these definitions?
Test 1: “any standard
except those where it
can affirmatively be
shown that a
participant in the
standards setting
process has sought or
expressed an intention
to collect a royalty in
connection with its
essential patents.”
Test 2: “a standard
created at an SSO
which has an IPR
Policy that requires
all participants to
make any essential
patent claims
available on a royalty
free basis”
Test 3: “a standard where
it can affirmatively be
shown that no
implementer has been
charged a royalty to
implement”
Section II: 3 Current Policies
• India “Policy on Open Standards in eGovernance” (Nov 2010)
•
[1] The specification is “available with or without a nominal fee”; [2] “Patent claims necessary to
implement the Identified Standard shall be made available on a Royalty-Free basis”; [3] “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] “Standard shall be recursively
open as far as possible”; [5] “Standard shall have technology-neutral specification”; [6] “Standard
shall be capable of localization support”
• European Interoperability Framework version 2 (Dec 2010)
•
[1] “All stakeholders have the same possibility of contributing to the development of the specification
and public review is part of the decision-making process”; [2] “The specification is available for
everybody to study”; [3] “Intellectual property rights related to the specification are licensed on
FRAND terms or on a royalty-free basis in a way that allows implementation in both proprietary and
open source software”
• Procurement Policy Note on Open Standards (Jan 2011)
•
[1] “result from and are maintained through an open, independent process”; [2] “are approved by a
recognised specification or standardisation organisation, for example W3C or ISO or equivalent.”; [3]
“are thoroughly documented and publicly available at zero or low cost”; [4] “have intellectual property
made irrevocably available on a royalty free basis”; [5] “as a whole can be implemented and shared
under different development approaches and on a number of platforms”
Comparison of Policies against Attributes
Attribute/Country
India Policy
UK Policy
“permeability” to
stakeholders
“all stakeholders can opt to “open … process”
participate”
EIF v2
“All stakeholders have the
same possibility of
contributing”
“transparency” governance “participate in a
and due process
transparent, collaborative
and consensual manner”
“open, independent process” “All stakeholders have the
same possibility of
contributing to the
development of the
specification and public
review is part of the
decision-making process”
“structural attributes”
“adopted and maintained
by a not-for-profit
organization”
“recognised specification or No reference
standardisation organisation”
accessibility to the
specification
“available
with or without a nominal
fee”
“publicly available at zero or “available for everybody to
low cost”
study”
Licensing terms for
essential patent claims
“available on a RoyaltyFree basis”
“made irrevocably available “licensed on FRAND terms
on a royalty free basis”
or on a royalty-free basis”
Section III: Overlay with SSO Ecosystem
• Key question: “how do standards from a particular SSO stack
up against the openness attributes in general and the three
government policies more specifically?”
• Focus: IPR attribute
• Majority of SSO IPR Policies allow Reasonable Royalty
• ISO/IEC Patent Policy: (i) agree to license essential
claims on RAND terms “free of charge” (ii) agree to
license them on RAND terms with a royalty or (iii)
state that it will not license in accordance with first two
options
• Which standards meet the Royalty Free requirement?
• W3C and certain OASIS standards
Policies Compared with SSO Practice
India
UK
EIFv2
IETF
No
No
Yes
ISO/IEC
No
No
Yes
OASIS
Any RF mode TC
Any RF Mode TC
Yes
W3C
Yes
Yes
Yes
IEEE
No
No
Yes
ITU/ITU-T
No
No
Yes
ETSI
No
No
Yes
CEN/CENELEC
No
No
Yes
National Government Standards Requirements by
IPR Status
901
1558
328
RAND
"Royalty Free"
Unknown
Source: Database of 35 National Standards Lists (on file with author)
Part VI- Conclusions
• Key Questions
• How do these policy debates line up against what the
standards community is doing?
• More importantly, what underlying objectives do
governments seek to address via these policy tools?
• Do/can these policy tool achieve such objectives?