Open Standards – redefined?

For years and years I am using and promoting the term Open Standards. And it has always been very clear what an Open Standard is and, more important, what it is not.

You can go through various defintions of Open Standards:

And no matter what differences you find in those definitions, they all agree on some crucial points, the most important being the freedom to use and implement the standard without having to ask for permission or having to pay license fees for the use of an Open Standard.

The Freedom to Use and Implement is fundamental to Open Standards. This means that whatever so-called “Intellectual Property” like (software) patents etc might be involved in an Open Standard must be made available to any third party on a Royalty Free basis.

Which leads to a simple conclusion – if you have to pay for use/implementation of a standard, this standard is NOT an open standard.

If you agree this far, pay special attention to this:

Currently, the Chinese companies using technologies detained by European companies are not allowed to enter into negotiations on the amount of royalties due to the latter, when they use their essential patents in the framework of open standards. The situation is highly detrimental to European companies and their complaint has been reflected in the European Chamber of Commerce in China (EUCCC) – IPR Working Group’s Position Paper 2005. The Commission therefore urged the Chinese government to take action in order to ensure that those royalties are duly paid by Chinese companies.

Hartmut Pilch from FFII pointed my attention to this and added some valuable comments here.

Bottom line is – DG Trade, represented by Mr. Luc Pierre Devigne, seems to use the term Open Standards in a way that is simply not compatible with the accepted definition of Open Standards. Royalty payments on Open Standards can simply not exist in my view.

So either Mr. Devigne made a little mistake by using the term Open Standards here OR this is the start of redefining Open Standards to mean the exact opposite. Could someone talk to Mr. Devigne and ask hoim for clarification? This is an important question.

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7 thoughts on “Open Standards – redefined?”

  1. This ugly redefinition of Open Standards has been taking place for some time now, e.g. with the leaked draft of the 2nd version of the EIF (see FSFE’s short analysis on http://www.fsfe.org/projects/os/eifv2.en.html )

    So I’m afraid the second option is the true one: trying to redefine Open Standards to mean nothing…

  2. Caveat: I am explaining context here, not defending it. I am at least as great a proponent of restriction-free standards as anyone else I know…

    The redefinition that’s in progress is of the term “open standards” to mean RF-only (which by the way is still not enough to protect open source implementation, unless the R stands for “restriction”). It’s a term that has been used for a very long time to identify the sort of process used by organisations like 3GPP and others in industries where technology includes atoms and not just bits.

    Their process dates from the days when software was destined to be firmware, when the only possible motivation to participate in the process was as a well-funded business since the infrastructure costs of any implementation were enormous. This was well before the Internet made open methods possible and before the mass popularisation of open source community development for software.

    The method they use involves a problem being posed by the standards group (“we need a way to pass calls from cell tower to cell tower”) and then every participant freely proposing a solution to the problem in public. The best approach wins by technical acclaim and becomes the standard. Participants feel able to contribute freely since they know that the technique implemented will be royalty-bearing, usually as part of a patent licensing pool. The standard was defined in the open based purely on merit, so is considered an open standard.

    Much of the conflict in the SWPAT debate 5 years ago seemed to me to arise from this basic cultural conflict, with the telco side of the house justifiably concerned that a change prohibiting the mechanism that made their industry work would be harmful and unjustified and the FOSS side of the house justifiably concerned that the SWPAT directive would make open source almnost impossible. The failure of either side to consider the other as entitled to live was what poisoned the discussion.

    This time round, I believe it is very important that we define “open software standard” to mean exclusively restriction-free technology without trying to define “open telecoms standard” in a way that kills 3GPP, 3GPP2 and the other standards processes inheriting this older understanding of “open”.

  3. The use of the term “open standard” in an EIF-incompatible way is not the only problem here. What I find most surprising is the single-mindedness with which DG Trade is pushing other countries to legislate in favor of unfettered patentability and patent enforcability even in areas where this is known to be highly controversial and probably damaging to the public interest. DG Trade did not only push for payment of royalties on those standards, but for individual negotiation with patent owners outside of the pool (i.e. patent ambush companies like those that blocked the JPEG standard), and for changes in Chinese laws that were, for good reasons and in full compliance with TRIPs and other international obligations, designed to counter such abuses.
    I am more amused than scandalised, because the Chinese are anyway not going to listen to this kind of patent-maximalist advice from Europe.

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