Page 55 - Proceedings of the 2017 ITU Kaleidoscope

INTELLECTUAL PROPERTY LICENSING TENSIONS IN INCORPORATING OPEN
SOURCE INTO FORMAL STANDARD SETTING CONTEXT
- THE CASE OF APACHE V.2 IN ETSI AS A START

Jingze Li

Tilburg University

ABSTRACT Against this background, this paper endeavours to generate
an overview on the IPR issues, namely copyright and patent,
Open Source Software is playing an increasing role in ICT in the current discussion. Given the complexity of different
standardizations on future technologies such as 5G and actors in these potential interplays, we limited our research
Internet of Things. Formal standard settings organizations by taking the perspective of formal standard settings
(SSOs) are exploring ways to incorporate open source organizations (SSOs). We wish to the following questions:
approach. This paper depicts the difference between open “Whether the current IPRs framework of formal SSOs is
source licenses and the current SSOs legal framework in adequate to embrace the OSS?” “What are the differences
dealing with intellectual property rights, mainly the between SSOs’ IPR policy and open source licenses in
FRAND license commitment for patented technologies and dealing with IPRs?” “What gaps may arise from such
the distribution for copyrighted software in specifications. differences?”
Such difference might cause tensions in the two scenarios of In order to explore the answers, we need to first understand
interactions between SSO standards and open source: the the differences in current SSOs policies and open source
implementation phase and the standardization activity licenses, by examining the IPR policies for licensing in
phase. Some of the tensions are currently hypothetical. both SSOs and OSS (Part 2). Such comparisons should not
However, one recent and concrete example from ETSI, be conducted in a vacuum; instead, we will analyze the
hosting an open source project under Apache v.2, might tensions in scenarios where open source licenses meet IPRs
shed light on how SSOs can (cannot) avoid tensions by policies of SSOs, with the help of reference to existing IP
making changes to the governing framework. laws, legal discussions and court cases (Part 3). In part 4,
we will introduce an open source project (OSM) launched
Keywords— open source software, ICT standardization, by the ETSI in 2016 [10] to reflect on our arguments.
IP licenses, ETSI, 5G Since we limited our stance to the SSOs perspective, we
will discuss the scenarios where SSOs take a pro-active role,
1. INTRODUCTION namely facilitating open source implementation and
utilizing open source working process. We admit that other
Future technologies, such as 5G and the Internet of Things interactions between open source and ICT standards might
(IoTs), present a unique opportunity for new forms of occur in reality, nevertheless, these are not within the scope
innovation and collaboration in standardization activities. of current research such as scenarios where open source
Among other things, open source software (OSS), is products become “de facto” standards. Further, in this
increasingly active in shaping technologies such as NFV [1]. preliminary analysis, we mainly discuss policies of three
Previous research from both academia and the industry formal SSOs because they have an international influence
have explored possible ways for open source to play a role and are currently active in developing future technology
in Information and Communication Technology (ICT) standards. They are the International Telecommunication
standards development [2][3]. Questions are often asked in Union (ITU), the European Telecommunication Standard
these studies, such as how Intellectual Property rights (IPRs) Institute (ETSI), and the Institute of Electrical and
in the interplay will be dealt with, who will own the Electronics Engineers (IEEE). Policies of other SSOs will
copyright and whether patent license commitments are be mentioned if necessary. Similarly, it is not possible to
compatible. Several issues have been addressed in some exhaust all OSLs here. We will focus on some typical
pioneering legal work [4][5][6]. Most of these legal features represented by the nine licenses that are “popular
discussions focused on the compatibility between Fair, and widely-used or with strong communities” identified by
Reasonable and Non-Discriminatory (FRAND) licensing the Open Source Initiative (OSI) [11].
commitment on Standard Essential Patents (SEPs) and open
source licenses (OSLs). Few of them have touched upon 2. SSO AND OSS: LIBRARIES AND BAZAARS
legal discussion about the whole picture, given the evolving
reality that new technologies keep bringing new scenarios Perhaps a sense of difference could already be perceived
[7] [8] [9]. when one looks at the two abbreviations, SSO and OSS.

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