Page 57 - Proceedings of the 2017 ITU Kaleidoscope

Challenges for a data-driven society

One of the well-known norm s is the “copyleft”, which is a of opportunistic conduct in the adoption of voluntary
general method for making a program (or other work) to be consensus standards, while encouraging participants to
licensed under the same open source license. This include the best available technology in standards” [25].
requirement extends to all modified versions. Five in nine The fact that FRAND is a vague concept leaves room for
of the most popular OSLs have this feature, such as the parties to negotiate, which is a balance between the access
GPL, Mozilla Public License (MPL), or Eclipse Public to technologies and the interests of patent holders.
License (EPL). While among them, GPL family licenses
have the strong copyleft that requires modifications to be 2.2.2 OSS
licensed back “as a whole”, which is argued to have the
viral effect that contaminates contributions combined with
the license [19]. While the scope of “weak copyleft” feature Unlike SSOs that put much attention on patents, copyright-
based OSLs did not have patent grant clauses in their early
of licenses such as MPL or EPL is limited to contributions
made to the project under the license. Other norms, generations. However, with the growing number of
software-related patents issued by patent offices worldwide,
including approaches toward patent rights, may also be part
of an open source license, such as in GPL v.3 and Apache patents are now pervasive in software innovation industry.
Correspondingly, many OSLs today have patent clauses.
v.2.
Six of the nine most popular OSLs have explicit patent
clause, and all of them require to grant patent on RF basis.
2.2. Patent licenses
Although the first impression would be that such a RF
clause with a specific open source license is clearer than a
Perhaps one of the most contentious issues that have been mere FRAND commitment, norms accompanied by OSLs
discussed so far in the context of the interaction between (the same are applicable to copyright) will influence the
standards and open source is the patent granting clause actual effect and scope of a patent clause. For instance,
[4][5][20][6]. A patent is an exclusive right granted for an patent retaliation clause adopted Apache v.2 specifies that
invention of a new way of doing something. Unlike the patent grant is terminated once the recipient initiate a
copyright which emphasizes on originality, a patent right patent litigation against the patent right. Another example is
went a step further to control the idea behind new the copyleft feature that we have discussed. GPL v.3 has
inventions. Arguably, it is stronger in terms of exclusivity. both RF patent granting and copyleft, which might subject a
patent owned by a third party to the same RF clause once it
2.2.1 SSOs has been combined with OSS released under GPL v.3.

As we have learned from recent discussions on SEPs, 3. PERCEIVED TENSIONS
patent commitment constitutes a significant part of SSO
IPR rules. While SSOs maintain the copyright of Having discussed the different values and ways of making
specifications, patented technologies embedded in copyright and patent available, it should be noted that these
standards are on the hands of members (patent right differences do not necessitate conflicts; instead, one should
holders). Implementers have to seek a patent license for consider them in the context of different scenarios. SSOs
inter alia SEPs in order to comply with a standard. The used to be an arena where proprietary technologies played
value of a patent tends to increase after it has been the main role. However, an empirical study on the RDFa
embedded in a standard thereby enhancing the bargaining standard and its implementation in the Drupal open source
power of the patent holder [21]. Hence, it has become a project has shown that “widely deployed standards can
common practice for SSOs to require a license commitment benefit from contributions provided by a range of different
on SEPs by members before including the patented individuals. Organizations, and types of organizations
technologies [22]. Common commitment practices include: either directly to a standard or indirectly via an open source
Fair Reasonable and Non-discrimination (FRAND), project implementing the standard” [26]. With the need of
Royalty Free (RF) and Non Assertion Covenant (NAC) ever fast growing technologies, major formal SSOs such as
[23]. FRAND is the most widely used SEPs commitment in ITU, ETSI and ANSI in ICT all have recognized the
terms of both number of technologies and SSOs [24]. For advantages of utilizing OSS [27][7][8] and have started
instance, the ITU, IEEE and ETSI require patent holders to exploring the possible ways to utilize open source working
commit to negotiate FRAND license terms to make their process and potential IPRs risks.
SEPs available to implementers. A recent study by Lundell and Gamelielsson depicted three
SSOs do not specify what terms constitute a FRAND basic scenarios based on sequence of standards and open
license, leaving parties to negotiate. It is worth noting that, source, namely “standard first”, “software implementation
the IEEE took further steps in 2015 on enriching the first” and “standard and implementation of standard in
meaning of FRAND. For example, it specified the smallest parallel” [2]. For the purpose of the current research, we
saleable unit principle (SSUP), which requires that a categorized two major clusters from the perspective of SSO,
reasonable royalty calculation should consider the value of according to the time when an SSO is utilizing OSS: one in
the smallest saleable compliant implementation that the implementation phase and one in the standardization
practices that patent claim. Nevertheless, as the United activity phase. It should be noted that, such simplification is
States Patent and Trademark Office (USPTO) put it, the only for the explanation of the current paper and variations
FRAND is an effort from SDOs to “reduce the occurrences

– 41 –