Page 64 - Proceedings of the 2017 ITU Kaleidoscope

2017 ITU Kaleidoscope Academic Conference

and requirements concerning the disclosure and licensing of consumers and wider society. It is for this reason that
patented technologies essential for the proper functioning of understanding of SDOs functioning and organization is of
a standard. Procedural rules and policies administering crucial importance for contemporary standardization
standard-setting processes are drafted by SDOs’ governing research.
bodies. Given that these rules are not considered a part of Despite the differences in their institutional design, SDOs are
3
standardization processes, the governance of SDOs has often believed to mimic each other’s organizational models
managed for a long time to escape the legal purview. [1] [6]. One of the features shared between SDOs is their
Against this backdrop, this paper seeks to reinforce the member-driven character, which implies that the rules and
importance of standardization processes and the need of procedures governing activities of an SDO, including its
legal analysis of standards development procedures within technical decision-making, should be agreed among the
SDOs. It further suggests that, since the rules issued by SDO SDO’s membership. Within industry consortia, whose
are binding upon their affiliates, they constitute a crucial part informal setting proved attractive for ICT and Internet
of standardization activities and should be subject to the standardization, rules and procedures are typically developed
similar procedural scrutiny as standards development by a small group of actors – the promotors, - and the entire
processes. While providing a brief analysis of standard- membership is not necessarily represented in SDOs’
setting and governance procedures of five prominent SDOs governing bodies [7]. Unlike processes of standards
operating in ICT and telecommunications sector, this paper development, governance processes are not explicitly
illustrates a divide between stakeholders developing regulated in national or international frameworks for
standards and those setting the rules governing standardization activities. The overarching requirements
standardization processes, and suggest that such disconnect introduced by American National Standards Institute
may have negative implications for technological (ANSI), the European legislator or the International
standardization. Organization for Standardization (ISO) concern openness,
consensus and transparency of standard-setting, and
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2. GOVERNANCE AND STANDARDS balanced, FRAND-based patent policies, without specifying
DEVELOPMENT OF SDOS the processes of how the policy is developed and approved.
Nevertheless, the significance attached to governance
Standardization is a dynamic, expertise-based process that processes of both formal and informal SDOs should not be
aims to strike a balance between achieving effective underestimated. When signing a membership agreement – or
technical solutions and getting all standardizers on the same joining a working group of an informal SDO - organizations
page. In this regard, standards for technical interoperability and individuals become bound by the set of rules within that
and Internet protocols are particularly interesting, as their SDO. Naturally, members also retain a certain degree of
proper functioning and implementation is often conditional autonomy in standard-setting activities and are hardly
upon proprietary technologies subject to patent claims. A subjected to any form of “control” by an SDO [9]. Their
lack of agreement between licensors and licensees, and temporary role of standardizers is executed in the shadow of
misinterpretation of rules and policies applicable to standard their main purposes, which may be profit maximization,
essential patents, create uncertainty among stakeholders and consumer or environment protection, promulgation of
affect their standards development efforts. human rights, etc. [10]. Membership of SDOs is completely
Within the confines of committee-based standardization, the voluntary, as so is the adoption of their standards;
onus is on SDOs and their members to design appropriate contrariwise, SDOs’ operational rules should in principle be
rules governing disclosure and licensing of patented followed as a condition for using their forum.
technologies. Along similar lines, SDOs adopt procedures As standards shape technical infrastructure and coordinate
for managing participation in and contribution to standard- behavior of firms and individuals, SDOs’ governance
setting, define the rights and obligations of SDOs’ members processes coordinate standards development. The strong
and provide mechanisms for mitigating arising conflicts. connection between the two becomes evident once an SDO
Institutional architecture and orchestration of SDOs affects modifies its operational rules. Such amendments may affect
coordination ability of standardizers and their incentives to the willingness of firms to join the processes within a
join standards development processes [8]; yet, decisions particular SDO, or to offer their technologies for inclusion
taken during standards development meetings determine the into a standard, which may have profound consequences for
content and implementation terms of standards document the outcome of standardization processes and even reshape
and given that standards often shape modern technologies, the industry [11]. Accordingly, the design of SDOs’
are likely to impact an array of stakeholders, ranging from governance determine the course of standardization
hardware manufacturers and technology vendors to activities and by this means, exert considerable impact on

3 As an example, see ANSI Essential Requirements: Due Process development of consensus for approval, revision, reaffirmation, and
Requirements for American Standards (January 2017), retrieved withdrawal of American National Standards (ANS)”.
from 4 Id.; see also Regulation 1025/2012 of the European Parliament
https://share.ansi.org/shared%20documents/Standards%20Activiti and of the Council of 25 October 2012, OJ L 316/12, Rec 2 and
es/American%20National%20Standards/Procedures,%20Guides, Annex II, and ISO, Code of Conduct for Technical Work (2016)
%20and%20Forms/2017_ANSI_Essential_Requirements.pdf, retrieved from
Sec. 1.0: “These requirements apply to activities related to the https://www.iso.org/files/live/sites/isoorg/files/publications/en/pub
100397.pd.

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