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: Wests criteria largely condense and combine various of Krechmers 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?

Proof of Existence of Royalty Proof of Ability to Implement w/out Royalty Payment 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 What SSO IPR Policy Allows or Disallows

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/CountryIndia PolicyUK PolicyEIF v2 permeability to stakeholders all stakeholders can opt to participate open … process All stakeholders have the same possibility of contributing transparency governance and due process participate in a 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 standardisation organisation No reference accessibility to the specification available with or without a nominal fee publicly available at zero or low cost available for everybody to study Licensing terms for essential patent claims available on a Royalty- Free basis made irrevocably available on a royalty free basis licensed on FRAND terms 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 IndiaUKEIFv2 IETFNo Yes ISO/IECNo Yes OASISAny RF mode TCAny RF Mode TCYes W3CYes IEEENo Yes ITU/ITU-TNo Yes ETSINo Yes CEN/CENELECNo Yes

National Government Standards Requirements by IPR Status 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?