Standardisation Policy More Effective Than Legislation On IP? 25/01/2008 by Monika Ermert for Intellectual Property Watch 1 Comment Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)By Monika Ermert for Intellectual Property Watch Efforts by European Union authorities to take advantage of standardisation as a de facto regulatory tool have not been sufficiently systematic in recent years, according to a study published by the European Commission last week. Yet standards especially in information and communications technology (ICT) are becoming more important, said Patrick Van Eecke, attorney at the Brussels office of DLA Piper UK and co-author of the study. The study [link here] recommended a dialogue between standardisation organisations and all stakeholders. Also urgently needed is a balance between technical standards and intellectual property rights, according to the study. Concerns that overly rigid IPR protection might become a problem for invention and innovation recently also resulted in other recommendations and decisions at the EU level. A call for changes in the EU patent system was made in a study commissioned by the European Parliament’s Scientific and Technological Options Assessment (STOA) unit and an inquiry into possible anticompetitive practices by the pharmaceutical industry that was initiated by European Commissioner for Competition Neelie Kroes. A debate on future EU standardisation policy will take place at a conference organised by the European Commission on 12 February in Brussels. Author Van Eecke, speaking with Intellectual Property Watch, pointed to the growing relevance of technical standards that “are more important than legislation.” Companies and citizens either abide by laws passed by governments or not, but to not follow well-established technical standards would mean to be excluded from the market. “If you are a policymaker, you really would like to make sure that companies and citizens abide by the rules, so instead of drafting a law you could put them into a standard,” he said. Using privacy as an example, he said, “You can draft one hundred laws that should protect it – and hope that people follow the law. But if you are able to have EU data protection implemented in the technical standards, it might be much more effective.” Van Eecke said that legislators who try to rule via standards would end up drawing the conclusion from American cyberlaw luminary Lawrence Lessig’s theory that code is the (new) law and shifts legislators’ attention to standardisation. “Yet what you see is that more and more standards are not drafted by organisations that take orders from the EU Commission or governments.” The European Union has tried to build strong EU standardisation bodies by institutionalising the European Committee for Standardisation (CEN), the European Committee for Electrotechnical Standardisation (CENELEC) and the European Telecommunications Standardisation Institute (ETSI). Yet instead, more and more standards have been crafted by private standardisation bodies like the Internet Engineering Task Force, (IETF), World Wide Web Consortium (W3C) or industry consortia like the Organisation for the Advancement of Structured Information Standards (OASIS). A big step forward, said Van Eecke, would be if the study resulted in a dialogue between organisations and stakeholders in a high-level forum that would decide on what to put into the standards. Instead of reinventing the wheel and pushing for standards by “official” EU standardisation bodies, EU regulators should join the private standardisation bodies where necessary and try to have the regulators’ policy perspectives reflected in their work, Van Eecke said. For example, instead of leaving discussions on standards at the IETF to US authorities alone, the European Union should participate and promote its ideas there, too. To have European political standards implemented in technical standards would also mean to possibly give them a global reach. Opening up EU standardisation bodies to more stakeholders also should be considered, Van Eecke said. The degree to which it is necessary to have a balance of interests and highly knowledgeable experts representing the public sector in standardisation issues is exemplified by the separate, ongoing fight over US software maker Microsoft’s attempt to get its electronic document format standardised by the International Organisation for Standardisation (ISO). Other measures recommended by the study point to possible access problems. To get access to official standards is costly and a barrier especially for small and medium-sized enterprises. Therefore, a new EU standardisation policy should, the study argued, include “a coherent and harmonised (free) availability policy for standards/specifications established by all standards/specification producing organisations within the European standardisation system” and “a thorough study on the relationship between the intellectual property rights and ICT standards to be initiated by the European Commission, the purpose of which should be to launch a global discussion with other global regions.” The balance between the much wanted law-like standards and IPR is difficult, noted the study, because “the underlying philosophies of standardisation and IPR-protection are seen as opposite. Whereas standardisation intends to put ideas into the public domain, protection of IPR makes them private property.” Furthermore, the legal framework of standardisation is blurred, while recognition of private rights over private creations is clear and patent ambushes (patent claims made late in the development of a standardisation process) are prevailing in court cases. The European Commission so far has tried to alleviate the problem by passing so-called FRAND rules that try to ensure “fair, reasonable and non-discriminatory” licensing when it comes to standards. A new ETSI IPR policy adopted in 2006 addressed the problem of IPR owners not agreeing to licences, yet the problem still is not really resolved, according to the study. Van Eecke said the one big success story in mandated EU standardisation on ICTs is the mobile wireless standard, GSM. But he said, “A lot of money has been wasted for licences, even if it has worked out in the end.” Motorola is said to have had the largest share of GSM relevant patents, with 3,831 mobile patents between 1976 and 2004 (of a total of 10,224 mobile telecommunication patents). While Motorola in the end did not fare as well in the GSM arena as its big rivals which traded their own thousands of patents against the US company, smaller companies did not succeed in entering the mobile phone market, according to experts. EU initiatives on patent system and open access The difficulty patents and copyright protection can bring for the competition and the public welfare is highlighted by the investigation of the pharmaceutical sector just announced by the EU Competition Directorate, a strong call for reform of the EU patent system by STOA and the recent announcement of the European Research Council for Open Access to results from public research. The pharmaceutical sector inquiry, according to the Commission, was started because “there are indications of commercial practices by pharmaceutical suppliers including notably patenting or the exercise of patents which may not serve to protect innovation but to block innovative and/or generic competition, litigation, which may be vexatious, and agreements, which may be collusive.” In order to check on possible market distortions, the EU competition authority would “use its powers of investigation in particular with respect to pharmaceutical suppliers of innovative and generic medicines for human consumption, consumer and professional organisations in health care, as well as authorities granting patents and marketing authorisations for drugs,” the Commission said. Increasing access to patented inventions in every field was requested by the STOA report on the EU patent system. Authors there recommend “to explore and support more flexible, non-exclusive exercises of patent rights, such as licence of right, patent pools and clearinghouses” that would give access to licensing also to small and medium-sized enterprises not involved in the patent race and therefore not able to bargain with patents of their own. The STOA report also holds that defensive publication should become an alternative practice. Instead of patenting their inventions – an effort too costly, for example, for small companies or university research – they should be able to publish their inventions in “publicly-available” databases. Access to scientific research funded by the European Research Council should be made accessible over appropriate research repositories and made open access within six months of publication, the ERC suggested. The council that has been working on public access issues for some time now wrote that it considers “essential that primary data – which in the life sciences for example could comprise data such as nucleotide/protein sequences, macromolecular atomic coordinates and “anonymized” epidemiological data – are deposited to the relevant databases as soon as possible, preferably immediately after publication and in any case not later than six months after the date of publication.” Monika Ermert may be reached at email@example.com. Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) Related "Standardisation Policy More Effective Than Legislation On IP?" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.