Interoperability and open standards: the key to a real openness
| Author | Simone Aliprandi |
| Position | Lead of the Copyleft-Italia.it Project, member of Array (Arraylaw.eu) and Ph.D. Candidate at Bicocca University of Milan |
| Pages | 5-24 |
Interoperability And Open Standards: The Key To True Openness And Innovation 5
Interoperability And Open Standards:
The Key To True Openness And Innovation
Simone Aliprandi,
a
(a) Lead of the Copyleft-Italia.it Project,
member of Array (Arraylaw.eu) and
Ph.D. Candidate at Bicocca University of Milan
DOI: 10.5033/ifosslr.v3i1.53
Abstract
Most people agree that providing a shared set of standards produces a
broad advantage for all actors involved in the ICT market. First of all,
it’s an advantage for active operators in that market (companies,
developers, designers), but also for users of computer technologies,
simple observers and scholars as well.
However, if on one hand the same concept of standard appears to be
quite intuitive and broadly known, on the other hand not so many
people are aware of the complex dynamics behind the standard
definition process, particularly in relation to today’s globalized and
technology-savvy world. Even fewer people seem aware that, when a
standard definition process is not being carried with true transparency
and care, this procedure could even become counterproductive for the
innovation itself. Therefore, in recent years, a new approach for the
standard definition process has been emerging, with the aim of
producing standards based on the broadest level of openness and
interoperability: the so-called open standards.
This essay will start by addressing the broad concept of standards, with
specific reference to the world of technology; later, it will focus on the
drafting process of standards, highlighting major problems regarding its
legal, economic and technology aspects. The final section will
concentrate on the very concept of an open standard.
Keywords
Free Libre and Open Source Software; Innovation; Open standard;
Open format; Standardization; Standard-setting process; Standard-
setting organizations; Interoperability; Copyright; Royalty-free; Patent.
1. The crucial role of interoperability
Many sources consider interoperability one of the key features pertaining to freedom of information
in a broader sense. Indeed, the lack of this “interoperable by default” feature threatens to crumble the
whole FLOSS (Free Libre and Open Source Software) system.
International Free and Open Source Software Law Review Vol. 3, Issue 1
6 Interoperability And Open Standards: The Key To True Openness And Innovation
According to its general definition, interoperability is the intentional design of a technology product
or system, which allows it to cooperate with other products or systems without restriction or
difficulty, thus producing a reliable outcome and resource optimization. The main goal of an
interoperable system is to facilitate interaction between different software applications and to enable
sharing and re-use of information among non-homogenous systems.
Based on this definition and given the current evolution and state of the mass computer market, it is
clear that interoperability plays a pivotal role in ensuring competition between all of the actors
involved. Major computer companies with large market shares can easily control and limit the
competitive power of their rivals with intentional product design, a conduct defined by the
competition law as “abuse of dominant position”.
Let’s consider a typical scenario of a global corporation that produces the most common operating
system, while, taking advantage of the basic tools provided by the industrial trade law (industrial
secret, copyright, patent), effectively prevents other companies from accessing the data needed to
develop applications fully compatible with their operating system. In this fashion, the corporation
would also effectively appropriate the application market, given the competitive edge provided by the
internal availability of their data. Similar practices should be (and, fortunately, actually are)
monitored and properly sanctioned by the Antitrust Authorities.
The complexity and importance of those aspects within the current economy put the spotlight on the
central role of interoperability. Indeed, during the last few years this issue has gained particular
relevance in public opinion and in International policy bodies as well. As a result, today, we have a
more articulate and adequate definition of interoperability, promoted by a research study launched
and concluded in 2004 by the IDABC (Interoperable Delivery of European eGovernment Services to
public Administrations, Businesses and Citizens) on behalf of the European Commission. The study
focused on the implication of e-government and the relationship between citizens and public
Administrations. In the final report, this research includes a detailed definition of the interoperability
concept and a list of major objectives pertaining to the EU States. The document title is “European
Interoperability Framework for pan-European eGovernment Services”, also known by its acronym
EIF. Paragraph 1.1.2. provides the following introduction to the actual definition of interoperability:
“Interoperability means the ability of information and communication technology (ICT)
systems and of the business processes they support to exchange data and to enable the
sharing of information and knowledge.”
Later on, the EIF document delves into the practical issues of this concept by detailing its three
different levels, that is: organizational, semantic and technical interoperability:
Organizational interoperability. This aspect of interoperability is concerned with
defining business goals, modelling business processes and bringing about the
collaboration of administrations that wish to exchange information and may have
different internal structures and processes. Moreover, organisational interoperability
aims at addressing the requirements of the user community by making services
available, easily identifiable, accessible and user-oriented.
Semantic interoperability. This aspect of interoperability is concerned with ensuring
International Free and Open Source Software Law Review Vol. 3, Issue 1
Interoperability And Open Standards: The Key To True Openness And Innovation 7
that the precise meaning of exchanged information is understandable by any other
application that was not initially developed for this purpose. Semantic interoperability
enables systems to combine received information with other information resources and
to process it in a meaningful manner. Semantic interoperability is therefore a
prerequisite for the front-end multilingual delivery of services to the user.
Technical interoperability. This aspect of interoperability covers the technical issues
of linking computer systems and services. It includes key aspects, such as open
interfaces, interconnection services, data integration and middleware, data presentation
and exchange, and accessibility and security services.
1
Here, it is useful to quote a tip by computer adviser Bob Sutor, who recommends avoiding any
confusion with the “intraoperability” concept – some kind of fake interoperability where a single
product or standard or platform remains still predominant in regards to other comparable items.
“I think the word 'interoperability' is being similarly abused. When a single vendor or
software provider makes it easier to connect primarily to his or her software, this is more
properly called intraoperability. In the intraoperability situation, one product is somehow
central and dominant, either by marketshare, attitude, or acquiescence. The connectivity is
supported by protocols and data formats that favor the central software, and those are
often prescribed by the provider. […] Compare this with real interoperability. In this
situation, we use truly open standards that do not favor any one software provider. They
work to allow two pieces of software to work together as they do any two others.
Certainly one of the providers might have a superior market position, but it is not given or
maintained by the asymmetrical intraoperable situation.”
2
2. The “standard” concept
Within the context of interoperability, the concept of “standard” emerges as a common but often
overlooked feature. Any generic dictionary could provide the following definitions for the term
standard:
Something, such as a practice or a product, that is widely recognized or employed,
especially because of its excellence.
3
A pattern or model that is generally accepted.
4
Both definitions make clear that this concept does not refer exclusively to the technology field, but
more in general to the manufacturing and industrial markets.
However, by limiting our analysis to the technology field, it becomes easy to understand how the
standard concept pairs perfectly with the interoperability concept. Indeed, a broadly recognized
1http://ec.europa.eu/idabc/en/document/3473.html
2 Sutor, Bob (2006) 'Interoperability vs. intraoperability: your open choice', http://www .sutor.com/newsite/blog-open/?
p=1260
3http://www .thefreedictionary.com/standard
4http://dictionary.cambridge.org/dictionary/british/standard_2
International Free and Open Source Software Law Review Vol. 3, Issue 1
8 Interoperability And Open Standards: The Key To True Openness And Innovation
standard, whose features are publicly available, fosters the development of adequate technology
solutions along two directions: by accessing such information, designers and developers can avoid
wasting resources and have more opportunities to see their product succeed in the market; since the
products designed are based on shared standards, the final users will have assurance that such
products will actually perform seamlessly together.
This approach is also confirmed by an interesting definition to be found in the online encyclopedia
Webopedia:
“[A standard is] a definition or format that has been approved by a recognized standards
organization or is accepted as a de facto standard by the industry. Standards exist for
programming languages, operating systems, data formats, communications protocols, and
electrical interface. From a user's standpoint, standards are extremely important in the
computer industry because they allow the combination of products from different
manufacturers to create a customized system. Without standards, only hardware and
software from the same company could be used together. In addition, standard user
interfaces can make it much easier to learn how to use new applications.”
5
3. Differences between de jure and de facto standards
A traditional distinction pertaining to the standard field lists two major categories – here below
sketched in a simple way just to provide a general introduction, while a deeper analysis will follow in
further sections of this essay. These two categories are: de jure standard and de facto standard.
De jure refers to a standard ensuing after a fair technical analysis and definition process, carried out
by the appropriate organizations, and based on a formal definition and description drafted in a
specific document. As a result, the organizations in charge of these tasks are known as “standard-
setting organizations” (or more generically, “standardization bodies”).
These norms are being drafted through a complex mechanism that includes consultation and analysis
stages carried by the regulatory body, along with experts in the specific industrial sector and the so-
called stakeholders, that is, all actors potentially interested in the emerging standard.
Obviously, a specific norm becomes more authoritative when relying, in particular, on the quantity of
stakeholders involved in the definition process and on the transparency and precision of the final
standard description. The following sections will further investigate the dynamics of the regulatory
process.
It should be noted here, however, that not always does any given model raise to the de jure standard
status. In fact, while some reference models are commonly considered ‘standard’ simply because of
their widespread dissemination, they have never actually been recognized as such by the appropriate
organizations through a regular standardization process. In these instances, we have a de facto
standard.
6
5http://www .webopedia.com/TERM/S/standard.html
6 Here is the “de facto standard” entry on the Webopedia Computer Dictionary: A format, language, or protocol that has
become a standard not because it has been approved by a standards organization but because it is widely used and
recognized by the industry as being standard (available at: http://www .webopedia.com/TERM/D/de_facto_standard.html )
International Free and Open Source Software Law Review Vol. 3, Issue 1
Interoperability And Open Standards: The Key To True Openness And Innovation 9
Therefore, we should focus our attention on the generic definition just mentioned above, where a
major role is played by an unspoken “agreement”. Indeed, any definition implies a unifying element
upon which a technical model could easily be considered a standard by virtue of a general agreement,
that is, based on a more or less explicit acceptance.
In this context, it is worth taking into account another definition for the term ‘standard’, included in
the “Frequently asked questions” section of the International Organization for Standardization (ISO)
website:
“[A standard is] a documented agreement containing technical specifications or other
precise criteria to be used consistently as rules, guidelines, or definitions of characteristics
to ensure that materials, products, processes and services are fit for their purpose.”
7
For comparison purposes, here is the definition included in the document drafted by ISO/IEC and
called 'Rules for the structure and drafting of International Standards':
“[A standard is] a document, established by consensus and approved by a recognized
body, that provides, for common and repeated use, rules, guidelines or characteristics for
activities or their results, aimed at the achievement of the optimum degree of order in a
given context (note: Standards should be based on the consolidated results of science,
technology and experience, and aimed at the promotion of optimum community
benefits).”
8
4. The standardization process
As mentioned earlier, the path leading to an actual standard definition is called a standardization (or
regulatory) process: it involves several stages, relies on the conventional features defining the standard
itself and is carried out by specialized bodies whose authority and credibility are widely recognized.
Defining a standard differs from the creation of a typical legal norm. The standard refers essentially
to the idea of a “norm” intended as a “kind” or “model” to which operators of a specified market
should adhere to in order to be part of the “game”, to avoid risking the exclusion from the game itself
(or at least a tougher participation). In other words, in the common meaning (legal norm) the
founding idea is based on a social group whose individuals are all bound to abide by certain rules and
where any violation leads to a judicial sanction. Instead, the other instance (standard definition)
implies a reference model defined by conventional dynamics, and any interested party (market
operators) can choose whether to accept them – keeping in mind, though, that the choice of non-
acceptance will lead to serious difficulties in its market operations.
The regulatory process, further detailed below, is one of the key points of today’s innovation in a
world more and more permeated by technology. Accordingly, this is a very sensitive and complex
step, involving several issues of legal, economic, political and ethical nature – well beyond
technology itself and requires a multi-faceted approach.
7http://www .iso.org/iso/support/faqs/faqs_standards.htm
8http://www .iec.ch/tiss/iec/Directives-Part2-Ed5.pdf
International Free and Open Source Software Law Review Vol. 3, Issue 1
10 Interoperability And Open Standards: The Key To True Openness And Innovation
4.1. Major principles of the standard-setting activity
The standard-setting activity is based on a few general principles whose compliance is essential to
provide reliability and authority to the final standard. Those principles are:
A consensual agreement, that is, reaching the maximum consensus possible between
all parties involved in the regulatory process. This is a pillar feature for the credibility
of the entire process and the overall standard stability;
A democratic procedure, given that a process based on democratic mechanisms
ensures that “all parties are being represented in each stage […] and that they can
concur in a leveled way to a project consensual approval”;
Transparency, given the importance of ensuring that along the standard-setting
process all involved parties have “the right, and the duty as well, to understand the
‘rules of the game’, that is, the regulations governing the activities of the various
committees and working groups and their areas of expertise, along with full access to
any documentation detailing the very regulatory process in progress”.
9
Of course, these are mostly ideal principles that “should” give shape to the standard-setting process.
In fact, we shall see that not all standard setting organizations follow these principles in a consistent
and regular way.
4.2. The stages of a standard-setting process
Each standardization body issues its own norms, adopts its own procedures and follows its own
practices for the standardization process. However, in almost any standardization process there is
bound to be a shared paradigm upon which our analysis can rely. According to the model proposed
by ISO
10
, each process develops along three general stages:
The need for a standard is usually expressed by an industry sector, which
communicates this need to a national member body. The latter proposes the new work
item to ISO as a whole. Once the need for an International Standard has been
recognized and formally agreed, the first phase involves definition of the technical
scope of the future standard. This phase is usually carried out in working groups,
which comprise technical experts from countries interested in the subject matter.
Once agreement has been reached on which technical aspects are to be covered in the
standard, a second phase is entered, during which countries negotiate the detailed
specifications within the standard. This is the consensus-building phase.
The final phase comprises the formal approval of the resulting draft International
Standard (the acceptance criteria stipulate approval by two-thirds of the ISO members
that have participated actively in the standards development process, and approval by
75% of all members that vote), following which the agreed text is published as an ISO
International Standard.
9 These three principles are listed in UNI (eds.) (2006) 'Le regole del gioco', UNI (p. 22), available online at:
http://www .uni.com/uni/controller/it/chi_siamo/regole_gioco.htm
10 http://www .iso.org/iso/standards_development/processes_and_procedures/how_are_standards_developed.htm
International Free and Open Source Software Law Review Vol. 3, Issue 1
Interoperability And Open Standards: The Key To True Openness And Innovation 11
According to another source,
11
the definition of an International Standard could also
pursue the following steps:
Proposal and necessity evaluation about the standard itself;
Putting together a first draft;
Consensus seeking based on that draft;
A broader inquiry stage, with the project being disseminated outside the circle of
interested parties to gather comments, suggestions, criticism or support;
Approval of the final draft by the standard-setting organization;
Publication of the official standard;
A possible revision stage, in case of specific requests or needs emerging after its
publication.
It is clear that this second scheme is just a more detailed version of the previous procedure.
In most cases, the drafting of the standard technical language is being managed by internal
committees and working groups, including experts representing all interested economic and social
stakeholders (producers, suppliers, customers, final users, distributors, research centers, consumers,
public administration officials, etc.). Therefore, the standardization body exerts mostly a working
coordination role and makes its own organizational structure available.
Finally, it should be noted that there has been an increasing trend where international standardization
bodies decide to adopt a standard already formalized by other regulatory bodies: in these instances,
we have a so-called “second degree standardization”.
This trend is particularly evident in complex application areas (such as, indeed, the ICT sector),
where the standardization process requires long and articulated technical evaluations and could result
in a better outcome if managed by a specialized body. This way, such body could address the
standard at an advanced stage for a final revision and ratification.
4.3. Standard publication and usage
The standardization process produces a final text or hypertext document, including all necessary
information to follow and reproduce the model described there – the so-called standard
specifications. Therefore, companies interested in developing a product according to that standard
must have full access to those specifications.
With few exceptions, as explained below, at this stage the major standardization bodies see the
documentation produced as content covered by industrial trade law (secret, copyright). As a
consequence, usually those standardization bodies do not distribute their documentation free of
charge (except for a few particular instances) and, in order to access it, the interested operators must
pay a royalty and acquire the necessary permission.
11 UNI (eds.) (2006) 'Le regole del gioco', UNI (p.108), available online at:
http://www .uni.com/uni/controller/it/chi_siamo/regole_gioco.htm
International Free and Open Source Software Law Review Vol. 3, Issue 1
12 Interoperability And Open Standards: The Key To True Openness And Innovation
Relying on such rights, the standardization body could even decide to regulate access and use (and,
indirectly, the implementation) of that standard by the customer. It is important to point out, however,
that these considerations essentially pertain to the standard documentation access, rather than to the
subsequent stage of its implementation. In fact, in addition to legal protection to access the standard
documentation, there could also be some industrial property rights (that is, patents) on the technical
solutions included and described in the standard itself. Therefore whoever acquires such
documentation could still be prevented from adopting and implementing the standard, unless by
paying another royalty to the possible patent holders.
12
This is a crucial distinction to fully understand the legal intricacies related to regulatory and
development issues within the technology sector. On the other hand, as we will soon illustrate,
intellectual property management – i.e., the licensing of patents – is indeed one of the most
sensitive matters in the field of standardization.
Finally, we should keep in mind that most of the revenue for the standard-setting organizations –
besides membership fees from associated or affiliated parties – comes from distributing the
documentation related to those standards and from licensing the standard itself to be implemented by
entities (companies and other professional operators) not actively involved in the standardization
process itself.
5. The ICT sector: between de facto standards and network externalities
As mentioned earlier, the issues around interoperability and shared standard have particular relevance
in the ICT sector. In this context, Massimiliano Granieri effectively points out that “the proliferation
of rights and stakeholders involved in the standard definition of a certain product grew very large in
the information and communication industry, featuring complex assets and system assets where
interoperability becomes the basic condition for existence of the market”.
13
Therefore, the direct link between this picture and the strong presence of network externalities makes
the ICT sector more inclined than other fields to the affirmation of de facto standards and not-so-
virtuous market dynamics, where the winner is not the best but rather the strongest and most
determined actor.
14
As illustrated in the previous chapter, in the past there have been some instances of successful de
facto standards, that is, reference models able to force themselves and settle due to smart market
strategies rather than on actual test of their features. It is safe to say that empirically the winner was
not always the most effective and innovative standard.
Indeed, the most emblematic and often mentioned case of such a situation points directly to the
technology world (specifically, about the home video-recording formats): the VHS format, proposed
12 According to some sources, this behaviour is a threat to the entire standardization process. For example, see this detailed
report about the Rambus case provided by Carlo Piana: http://www .piana.eu/rambus_ce .
13 Calderini, M.; Giannaccari, A.; Granieri, M. (2005), 'Standard, proprietà intellettuale e logica antitrust nell'industria
dell'informazione', Il Mulino (p. 34)
14 The de facto standard solution relies on market dynamics, self-regulation effects and operator support. The actual selection
of a de facto standard itself, which is not necessarily the best available, is exclusively or mostly due the power exerted by the
specific actors (as in the case of the Microsoft operating system); (ibidem, p. 45-46)
International Free and Open Source Software Law Review Vol. 3, Issue 1
Interoperability And Open Standards: The Key To True Openness And Innovation 13
in 1976 by JVC, defeated its direct competitor, the Betamax format, developed in 1975 by Sony. A
short summary of this story helps us to better understand the market dynamics behind similar
practices:
“When home VCRs started to become popular in the UK, the main issue was one of
availability and price. VHS machines were available through the high street rental chains
such as Radio Rentals and DER (most of whom were owned by Ferguson Electronics, who
were part-owned by JVC, the inventors of VHS), while Beta was seen as the more
upmarket choice for people who wanted quality and were prepared to pay for it. By 1980,
out of an estimated 100,000 homes with VCRs, 70% were rented, and the presence of
three (the third being Video 2000) competing formats meant that renting was an even
more attractive choice, since a small fortune (about 2000 or $3900 in today's prices)
could be spent on a system which may become obsolete. By the time Betamax machines
became easier to rent, VHS had already claimed 70% of the market.”
15
These strategic mechanisms supporting a de facto standard affirmation in the market are being
studied by economics theorists, particularly within the context of the so-called network economies
addressed earlier in this article.
6. Major issues facing the standardization process
The following paragraphs will try to focus our reader’s attention on the major issues highlighted by
the scientific literature (particularly in the legal and economic fields) regarding the standardization
process. More than a complete discussion, we will provide a general framework and ‘food for
thought’, referring to other and more specialized sources for a deeper assessment.
6.1. Standard and technology innovation
The framework outlined so far seems to suggest a common virtuosity and desirability of the
standardization itself. As a consequence, we could easily say that the existence of pre-defined
reference standards is always beneficial to technology development. However, most careful observers
underline that a much more complicated issue is at stake here.
When establishing a specific standard, even if under the most transparent and shared procedures, we
try to crystallize a specific reference model dictating the future development of a certain technology.
However, at the same, time we are fully aware that any development of technology relies on fast and
steady evolution – knowing all too well that eventually any effort to crystallize will be overwhelmed
by the current of this flooding river. In other words, a specific standard would only illustrate the
current state of the art and the techniques pertinent to the moment of the standard setting, or just a bit
beyond that.
Therefore, the standardization process should take into account these dynamics and maintain a fluid
perspective in order to encourage rather than stifle innovation. The stakeholders involved in the
standardization process should consider a long-medium range viewpoint, so that the standard would
15 http://en.wikipedia.org/wiki/Videotape_format_war
International Free and Open Source Software Law Review Vol. 3, Issue 1
14 Interoperability And Open Standards: The Key To True Openness And Innovation
become a pillar and a foundation providing actual support to future technology solutions. This is the
reason why in most cases a technology model, when it is relatively solid and well-known, gets
recognized as a standard.
Mario Calderini points out a crucial issue when explaining that the standardization process comprises
an implicit co-existence between two opposing forces that should be kept under a tightly controlled
balance if our aim is to truly gain more neutrality and technological innovation:
On one hand, we have a typical problem related to the standardization process: ensuring
that the convergence procedures come to fruition with efficient outcomes (selecting the
best technology available) as soon as possible. On the other hand, we have to ensure a
virtuous coexistence between platform openness and interoperability and the need to
define a competitive context able to foster innovation.
16
As a consequence of this situation, another risk emerges: a badly structured standardization system
could lead to a deadlock and hardening of the market, where the replacement of an obsolete standard
with a more modern one could be stifled for purely strategic reasons. On the one hand, when a
standard has taken roots -- that is, it is being widely adopted by companies and broadly used by
consumers – it encourages a natural inertia, which makes it particularly difficult to replace with a
new, innovative and technologically superior standard.
Addressing a key point within this framework, Andrea Giannaccari effectively underlines that
“positive network features could become high entry barriers – wisely modeled by lock-in
strategies – with the not-so-remote risk that such practice could even lead to an oligopolistic tunnel,
thus putting offplay or delaying the entry of superior technologies”.
17
6.2. Regulatory activities and intellectual property management
The growing need for a standardization approach in today’s ICT field, aimed more and more at
technological convergence and integration, seriously calls into question some of the basic paradigms
of intellectual property. This is because the very standard definition development feeds on an
apparent contradiction: when a company gets involved in a standardization process, it is required to
play in the open, it must share its own know-how with the other stakeholders about the very
technology that is being considered in view of standardization. Obviously, in a broader sense, this
know-how includes not only the business secrets typical of any technology design and development
activity, but also (and foremost) industrial property rights such as patents and copyright.
The technical definition for this showdown is “IPR (Intellectual Property Rights) disclosure”, and it
represents one of the key points on the roadmap to standard definition. Indeed, the holders of
industrial property rights should truly embrace a collaborative and transparent approach, by openly
declaring their property rights on the technical solutions being considered for the standardization
process and by agreeing not to make strategic use of these tools of legal protection. In fact, we could
picture an instance (actually, not so rare), where one of the companies involved in the standardization
16 Calderini, M.; Giannaccari, A.; Granieri, M. (2005), 'Standard, proprietà intellettuale e logica antitrust nell'industria
dell'informazione', Il Mulino (p. 17).
17 ibidem (p. 91)
International Free and Open Source Software Law Review Vol. 3, Issue 1
Interoperability And Open Standards: The Key To True Openness And Innovation 15
process hides from the other stakeholders its own patent on part of the very technology that is
becoming a standard. That company could even decide to disclose its exclusive rights only after the
standard has been formalized and published, thus requiring a royalty fee or even threatening legal
action against the other parties. This would be an unfair behavior from the ethical and competitive
standpoint in the first place but also quite dangerous for the entire standardization system. This
system could easily be stifled and could miss its essential goal of establishing a virtuous platform
aimed at innovation and interoperability. This is the main reason behind transparent and consistent
policies adopted by major standard-setting organization on intellectual property).
18
In addition, we must consider that, as mentioned earlier, often after a standard has been formalized, it
still might contain technical solutions covered by some sort of property rights. Therefore, it is crucial
to avoid risking that the subsequent adoption of standards by operators foreign to the standardization
process itself could become a “trap”
19
with heavy consequences from a legal point of view. Indeed,
the discovery of a patent later on in the development stage of a product or application will put the
same developer in an extremely weak contractual position.
According to some authors, the instrumental use of intellectual property rights gains primary
importance for the functionality of standards and, if not properly monitored, it could even transform
into some sort of “pathology” capable of degrading the entire standardization system.
20
6.3. Standardization and competition issues
It is common knowledge that anti-trust bodies ensure fair market competition by closely monitoring
the organizations where companies draft agreements on market development, exchanging information
and establishing timetables, procedures and prices for their products and services. According to some
sources, the standard-setting organizations could seize up on these competition dynamics due to their
specific nature.
Within the European context, the most apt regulation is Article 101 of the Treaty on the Functioning
of the European Union
21
, specifically addressing similar agreement practices among tech companies
(also called “cartels”). The first two paragraphs appear to be quite strict in prohibiting similar
18 While encouraging a simpler innovation process, the strategy of including technologies covered by intellectual property rights
in a certain standard could also promote a specific agenda by the same property rights holders. […] The behaviour of
standard-setting organizations becomes crucial in dealing with the various issues related to intellectual property rights.
(ibidem, p. 100)
19 Some sources define these instances as “patent ambushes”. For more details on this issue, see: Hueschelrath (2008) 'Patent
Ambushes in Standars Setting Organizations. Implications for Antitrust Policy and the Design of IP Rules', AEA, available
at http://www.aea-eu.net/2008Tokyo/DOCUMENTS/Publication/Abstract/HUSCHELRATH.pdf. See also: Farrell, Hayes,
Shapiro, Sullivan (2007) 'Standard Setting, Patents, and Hold-Up', 74 Antitrust Law Journal No. 3; or just the Wikipedia
entry: http://en.wikipedia.org/wiki/Patent_ambush
20 See this excerpt from the Rambus case mentioned earlier: Ghosts haunt the standardization process. They go by several
names and come in different forms: “standards abuse”, “standards hijacking”, “patent ambush”, “royalty ambush”, “patent
trolling”. The standardization world has never been so much under fire. Some companies try to bend the standardization
process to fit their own selfish interest, without any regard for the common weal. Some others just sit and wait until some of
their patent claims are “necessarily infringed” by a standard, the industry is locked in, and then pass the hat to collect the
high toll that standard-abiding companies are forced to pay, in spite of the licensing rules of the standard setting bodies
(SSB) that would require Reasonable And Non Discriminatory conditions (RAND) as a prerequisite for inclusion of any
patented contribution into the standard. Others do the same, but in addition they actively seek to seed the standards with
their own patented technology. Piana, Carlo (2009), 'Rambus and patents in standards', available at
http://www.piana.eu/rambus_ce
21 The full text of the treaty is available at: http://eur-lex.europa.eu/en/treaties/index.htm
International Free and Open Source Software Law Review Vol. 3, Issue 1
16 Interoperability And Open Standards: The Key To True Openness And Innovation
practices and many provisions seem to directly address the standard-setting organizations.
1. The following shall be prohibited as incompatible with the internal market: all
agreements between undertakings, decisions by associations of undertakings and concerted
practices which may affect trade between Member States and which have as their object
or effect the prevention, restriction or distortion of competition within the internal market,
and in particular those which:
(a) directly or indirectly fix purchase or selling prices or any other trading conditions;
(b) limit or control production, markets, technical development, or investment;
(c) share markets or sources of supply;
(d) apply dissimilar conditions to equivalent transactions with other trading parties,
thereby placing them at a competitive disadvantage;
(e) make the conclusion of contracts subject to acceptance by the other parties of
supplementary obligations which, by their nature or according to commercial usage, have
no connection with the subject of such contracts.
2. Any agreements or decisions prohibited pursuant to this Article shall be automatically
void.
However, this prohibition gets less stringent in the third paragraph, whose provisions seem to protect
exactly the existence of shared agreements among companies aimed at providing standardization
definitions.
3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of:
- any agreement or category of agreements between undertakings,
- any decision or category of decisions by associations of undertakings,
- any concerted practice or category of concerted practices,
which contributes to improving the production or distribution of goods or to promoting
technical or economic progress, while allowing consumers a fair share of the resulting
benefit [omissis].
22
In other words, the EU could consider legitimate, on a case by case basis, the kind of business
agreements that do not pose any danger to the balance of competition and, therefore, exempt them
from the prohibition clauses listed in the first paragraph of Article 101 (ex 81).
22 For more details, see the EC recommendation N. 330/2010 of 20th April 2010, in regards to Article 101, paragraph 3,
of the Treaty of EU guidelines about vertical cooperation agreements and shared practices.
International Free and Open Source Software Law Review Vol. 3, Issue 1
Interoperability And Open Standards: The Key To True Openness And Innovation 17
In fact, the European Commission takes care of providing regular instructions about the application of
Article 101 provisions in order to help companies choose and abide by the agreements compatible
with the competition rules.
23
Beyond this general framework about the application range of Article 101 (ex 81), we should also
take into account more specific and complex problems, particularly those issues that entail the anti-
trust regulation principles and the strategic use of industrial property rights within the standardization
process itself (including, for example, the issue technically defined as “patent pooling”
24
) mentioned
above.
According to some important authors, there are meaningful points of contact and contrast among the
standardization process, industrial property rights and fair competition regulations. Indeed, any
technology right does not refer just to the possibility of creating and marketing a certain technology,
but also provides control over market competition options and related products that are based on or
will use such technology.
In addition, we should keep in mind the differences existing between the US and the European
models. As a consequence, the legal and economic approach differs in regards to the attrition
between standardization and competition rights.
7. Open standards
Based on the general picture illustrated above, in recent years the technology world at large
(manufacturers, user communities, scholars and observers) has been witnessing a lively debate on the
need to come up with standards capable of ensuring the most transparency possible along their
adoption process and to allow free access to the related documentation, in order to maximize the
scope and range of interoperability. To better illustrate this state of affairs, here below we will
highlight some definitions drafted by authoritative sources.
7.1. The Open Standard definition by Bruce Perens
As a renowned representative of the FLOSS community and author of several popular essays on the
issue, Bruce Perens has been quick to provide a clear and exhaustive definition of open standards. In
his personal website
25
, Perens lists six essential requirements for the establishment of an open
standard:
Availability: Open Standards are available for all to read and implement;
Maximize end-user choice: Open Standards create a fair, competitive market for
implementations of the standard. They do not lock the customer in to a particular
vendor or group;
23 See for example the 'Guidelines on horizontal cooperation agreements' available at
http://europa.eu/legislation_summaries/competition/firms/l26062_en.htm
24 In patent law, a patent pool is a consortium of at least two companies agreeing to cross-license patents relating to a
particular technology (http://en.wikipedia.org/wiki/Patent_pool)
25 http://perens.com/OpenStandards/Definition.html
International Free and Open Source Software Law Review Vol. 3, Issue 1
18 Interoperability And Open Standards: The Key To True Openness And Innovation
No royalty: Open Standards are free for all to implement, with no royalty or fee.
Certification of compliance by the standards organization may involve a fee;
No discrimination: Open Standards and the organizations that administer them do not
favor one implementor over another for any reason other than the technical standards
compliance of a vendor's implementation. Certification organizations must provide a
path for low and zero-cost implementations to be validated, but may also provide
enhanced certification services;
Extension or subset: implementations of Open Standards may be extended, or offered
in subset form. However, certification organizations may decline to certify subset
implementations, and may place requirements upon extensions;
Predatory practices: Open Standards may employ license terms that protect against
subversion of the standard by embrace-and-extend tactics. The licenses attached to the
standard may require the publication of reference information for extensions, and a
license for all others to create, distribute, and sell software that is compatible with the
extensions. An Open Standard may not otherwise prohibit extensions.
This definition has been applied in several frameworks, including a research study carried out in 2007
by UNDP (United Nations Development Programme) covering interoperability in e-government,
under the title of “New Guidelines on e-Government Interoperability Developed by Governments for
Governments”. However, the document part of this research states the lack of general consensus on
the requirements described by Perens, considered too restrictive by some sources. The controversial
part is essentially the “no royalty” requirement: it seems excessive to impose a royalty-free model,
given the possibility that a fee payment, even if based on reasonable and non-discriminatory
conditions, could actually represent a major incentive to the standard development and management.
7.2. The Open Standard definition by the ITU-T
This latter position has been embraced, among others, by the Telecommunication Standardization
Sector (ITU-T), the organization coordinating standards for telecommunications on behalf of the
International Telecommunication Union (ITU) and based in Geneva, Switzerland. The ITU-T has
taken a different stance on the Open Standard concept, providing first a broad encyclopedia-style
definition and then listing a series of requirements. The following is the basic definition available on
the ITU website:
“Open Standards are standards made available to the general public and are developed
(or approved) and maintained via a collaborative and consensus driven process. Open
Standards facilitate interoperability and data exchange among different products or
services and are intended for widespread adoption.”
26
The same page includes a list of the requirements proposed by ITU, with the notice that those are not
obligations but rather some general and illustrative conditions:
Collaborative process: voluntary and market-driven development (or approval)
following a transparent consensus-driven process that is reasonably open to all
26 http://www.itu.int/ITU-T/othergroups/ipr-adhoc/openstandards.html
International Free and Open Source Software Law Review Vol. 3, Issue 1
Interoperability And Open Standards: The Key To True Openness And Innovation 19
interested parties.
Reasonably balanced: ensures that the process is not dominated by any one interest
group.
Due process: includes consideration of and response to comments by interested
parties.
Intellectual property rights (IPRs): IPRs essential to implement the standard to be
licensed to all applicants on a worldwide, non-discriminatory basis, either (1) for free
and under other reasonable terms and conditions or (2) on reasonable terms and
conditions (which may include monetary compensation). Negotiations are left to the
parties concerned and are performed outside the SDO.
27
Quality and level of detail: sufficient to permit the development of a variety of
competing implementations of interoperable products or services. Standardized
interfaces are not hidden or controlled other than by the SDO promulgating the
standard.
Publicly available: easily available for implementation and use, at a reasonable price.
Publication of the text of a standard by others is permitted only with the prior approval
of the SDO.
On-going support: maintained and supported over a long period of time.
7.3. The Open Standard definition by the IDABC
Finally, here is a less articulated, but concise and clear, definition which today main institutional
bodies consider the most reliable one. This definition is included in the above-mentioned European
Interoperability Framework (EIF) and has been adopted by several standardization organization and
public institutions, particularly in their regulations and recommendations related to e-government.
According to the definition drafted by the IDABC
28
, a standard is considered “open” when:
The standard is adopted and will be maintained by a not-for-profit organisation, and its
ongoing development occurs on the basis of an open decision-making procedure
available to all interested parties (consensus or majority decision etc.).
The standard has been published and the standard specification document is available
either freely or at a nominal charge. It must be permissible to all to copy, distribute and
use it for no fee or at a nominal fee.
The intellectual property – i.e. patents possibly present – of (parts of) the standard
is made irrevocably available on a royalty-free basis.
There are no constraints on the re-use of the standard.
27 Standard Developing Organization
28 This EIF definition is based on the Italian version available here:
http://www.uni.com/uni/controller/it/comunicare/articoli/2007_1/odf_26300.htm
International Free and Open Source Software Law Review Vol. 3, Issue 1
20 Interoperability And Open Standards: The Key To True Openness And Innovation
8. Classification criteria of Open Standards
The affirmation of the new entry of the ‘open standard’ opens up the framework of the standard
category regarding the two macro-categories mentioned earlier. In order to better illustrate this
expansion of the standard concept and related classification, we will quote directly the opinion of
Alfonso Fuggetta, Italian professor and scholar on issues concerning technology and innovation.
29
According to Fuggetta, a new classification based on the standard openness degree includes five
levels:
30
level 0: undisclosed/proprietary;
31
level 1: disclosed. The standard is owned by a company and is made “available” in
some form to other companies and users. The owner controls the evolution of the
standard;
level 2: concerted. There is a consultation, but the admission to the consultation
process and the management of the process itself is controlled by the company or by
the association of companies that emits the standard;
level 3: open concerted. There is an open participation process through which the
standard is defined and managed;
level 4: open de jure. Standards are owned and managed by official international and
national standard-setting organizations.
In turn, this classification leads to the following four kinds of standards:
proprietary standards, further differentiated in non-disclosed and disclosed
proprietary standards;
concerted standard;
concerted open standard;
de jure open standard.
Prof. Fuggetta is careful in pointing out that only the last two categories can be rightfully considered
“open standard”, and that despite the lack of universal consensus on the interpretation of this term, a
true open standard should also be royalty-free.
32
29 See the research paper 'Open standard, Open Formats, and Open Source', co-auhored by Davide Cerri and available at
http://www .davidecerri.org/sites/default/files/art-openness-jss07.pdf . The same ideas are also proposed in a post on
Fuggetta's personal blog: http://www .alfonsofuggetta.org/?p=539 .
30 Actually Fuggetta does not include the level 0, added here for clarity and completeness purposes.
31 This refers to a case when the standard specifications are not publicly available and the standard itself is being owned by
an organization imposing its property rights.
32 Another interesting classification is presented by Dolmans, Marurits (2010) 'A Tale of Two Tragedies – A plea for open
standards, and some comments on the RAND report', IFOSS L. Rev., 2(2), pp 115 – 138 , DOI: 10.5033/ifosslr.v2i2.46
International Free and Open Source Software Law Review Vol. 3, Issue 1
Interoperability And Open Standards: The Key To True Openness And Innovation 21
9. The web as an interoperable technology and the role of the W3C
Let’s imagine for a moment to strip today’s World Wide Web of its interoperability features.
Probably the Web as we know it would cease to exist, or at least it will not be able to match the
current evolution level. It is true that a general agreement on the de jure standard on the Web has
been reached only in a relatively recent time – particularly with the broad diffusion of the standard
developed by the World Wide Web Consortium (W3C). Nevertheless, since its inception, the whole
Internet has taken off and grew exponentially thanks to widely shared protocols and standards. This
trend enabled the penetration and worldwide success of the Internet in an unsurpassed way for any
other technology model yet.
The Internet, and more specifically the Web, as a successful instance of an interoperable technology
has received attention in many research and analysis. As an example of this literature, here would
suffice to briefly quote from the document “The Internet Standards Process”, drafted by Scott O.
Bradner at Harvard University:
“The Internet, a loosely-organized international collaboration of autonomous,
interconnected networks, supports host-to-host communication through voluntary
adherence to open protocols and procedures defined by Internet Standards. There are also
many isolated interconnected networks, which are not connected to the global Internet but
use the Internet Standards.”
33
The W3C is an international community where member organizations, a full-time staff and the public
work together to develop Web standards. W3C's mission is “to lead the World Wide Web to its full
potential by developing protocols and guidelines that ensure the long-term growth of the Web”.
34
Founded in 1994 and still led by Sir Tim Berners-Lee, the WC3 comprises more than 350 members,
including tech and telecom companies, non-profit organizations and research institutions, both private
and public. The W3C official website lists in seven items
35
its main objectives and strategic principles:
Universal access to web resources;
36
Research and development to build the so-called Semantic Web;
37
Promotion of a Web of Trust, an environment based on reciprocal collaboration, trust,
privacy and responsibility;
38
33 Bradner, S.O., 'The Internet Standards Process' (par. 1.1), available at: http://www.ietf.org/rfc/rfc2026.txt
34 http://www.w3.org/Consortium/mission
35 http://www.w3.org/Consortium/Points/
36 The W3C defines the Web as the universe of network-accessible information (available through your computer, phone,
television, or networked refrigerator...). Today this universe benefits society by enabling new forms of human communication
and opportunities to share knowledge. One of W3C's primary goals is to make these benefits available to all people,
whatever their hardware, software, network infrastructure, native language, culture, geographical location, or physical or
mental ability. W3C's Internationalization Activity, Device Independence Activity, Voice Browser Activity, and Web
Accessibility Initiative all illustrate our commitment to universal access; (ibidem)
37 People currently share their knowledge on the Web in language intended for other people. On the Semantic Web ("semantic"
means "having to do with meaning"), we will be able to express ourselves in terms that our computers can interpret and
exchange. By doing so, we will enable them to solve problems that we find tedious, to help us find quickly what we're
looking for: medical information, a movie review, a book purchase order, etc. The W3C languages RDF, XML, XML
Schema, and XML signatures are the building blocks of the Semantic Web; (ibidem)
38 The Web is a collaborative medium, not read-only like a magazine. In fact, the first Web browser was also an editor, though
most people today think of browsing as primarily viewing, not interacting. To promote a more collaborative environment, we
International Free and Open Source Software Law Review Vol. 3, Issue 1
22 Interoperability And Open Standards: The Key To True Openness And Innovation
Promotion of interoperability and open standards;
39
Fostering the Consortium evolution in accordance with the continuum of technology
development;
40
Decentralizing the architecture and organization of the Web itself developing cool
multimedia, that is, a Web more and more close to the user needs and able to provide a
richer interaction also for entertainment purposes.
41
10. The OASIS approach to the standardization activity
Launched in 1993, the non-profit consortium Organization for the Advancement of Structured
Information Standards (better known by its acronym OASIS) is mostly focused on promoting
research and formalization of open standards in the world of ICT. According to the organization
website, its mission is to lead “development, convergence and adoption of open standards for the
global Information Society”.
42
Founded under the name of “SGML Open”, the consortium was intended as a community of vendors
and users devoted to developing guidelines for interoperability among products that support the
Standard Generalized Markup Language (SGML). However, in 1998, the organization changed its
name to “OASIS Open” to reflect an expanded scope of technical work and the increasing attention
reserved by the ICT sector to technologies based on Extensible Markup Language (XML) and open
standards in a broader sense. Today, OASIS has more than 5,000 participants representing over 600
organizations and individual members in 100 countries, with headquarters in the USA and major
operative offices in Europe and Asia. As highlighted in its website, the consortium structure features
several interesting aspects that outline the basic philosophy behind its internal power balance and its
actual decision-making procedures. The OASIS approach is particularly oriented toward transparency,
democracy and openness. Quoting directly from its “About” web page:
must build a "Web of Trust" that offers confidentiality, instills confidence, and makes it possible for people to take
responsibility for (or be accountable for) what they publish on the Web. These goals drive much of W3C's work around
XML signatures, annotation mechanisms, group authoring, versioning, etc.; (ibidem)
39 Twenty years ago, people bought software that only worked with other software from the same vendor. Today, people have
more freedom to choose, and they rightly expect software components to be interchangeable. They also expect to be able to
view Web content with their preferred software (graphical desktop browser, speech synthesizer, braille display, car phone...).
W3C, a vendor-neutral organization, promotes interoperability by designing and promoting open (non-proprietary) computer
languages and protocols that avoid the market fragmentation of the past. This is achieved through industry consensus and
encouraging an open forum for discussion; (ibidem)
40 W3C aims for technical excellence but is well aware that what we know and need today may be insufficient to solve
tomorrow's problems. We therefore strive to build a Web that can easily evolve into an even better Web, without disrupting
what already works. The principles of simplicity, modularity, compatibility, and extensibility guide all of our designs;
(ibidem)
41 Who wouldn't like more interactivity and richer media on the Web, including resizable images, quality sound, video, 3D
effects, and animation? W3C's consensus process does not limit content provider creativity or mean boring browsing.
Through its membership, W3C listens to end-users and works toward providing a solid framework for the development of the
Cooler Web through languages such as the Scalable Vector Graphics (SVG) language and the Synchronized Multimedia
Integration Language (SMIL); (ibidem)
42 According to the presentation page at http://www.oasis-open.org/who: OASIS is a not-for-profit consortium that drives the
development, convergence and adoption of open standards for the global information society. The consortium produces more
Web services standards than any other organization along with standards for security, e-business, and standardization
efforts in the public sector and for application-specific markets
International Free and Open Source Software Law Review Vol. 3, Issue 1
Interoperability And Open Standards: The Key To True Openness And Innovation 23
“OASIS is distinguished by its transparent governance and operating procedures.
Members themselves set the OASIS technical agenda, using a lightweight process expressly
designed to promote industry consensus and unite disparate efforts. Completed work is
ratified by open ballot. Governance is accountable and unrestricted. Officers of both the
OASIS Board of Directors and Technical Advisory Board are chosen by democratic
election to serve two-year terms. Consortium leadership is based on individual merit and
is not tied to financial contribution, corporate standing, or special appointment.”
Another meaningful aspect of the consortium modus operandi concerns the management of industrial
property rights, an issue dealt with great attention and innovative strategy. In this regard, here is an
answer to a specific question included in the FAQ section of its website:
“Most OASIS specifications are provided to the public on a royalty-free basis. The OASIS
IPR Policy states that contributors of externally developed technical work must identify all
IP claims (patents, trademarks, etc.) associated with that work, and must agree to grant
use of this technology under reasonable and non-discriminatory (RAND) or royalty-free
(RF) terms for purposes of implementing the OASIS specification.”
43
Finally, OASIS embraces a pioneer approach to the whole standardization issue, encouraging a
propagation toward positive mechanisms and trends. Indeed, it is not by chance that one of the most
renowned standards – the Open Document Format, effectively recognized as an open standard –
has undergone a standardization process carried out by the OASIS consortium.
Conclusion
This general overview on the issue of interoperability (and its relationship with standardization)
highlights the importance of taking into consideration its many aspects in order to develop truly open
and innovative technologies.
In fact, any FLOSS advancement within an eco-system polluted by market strategies still rigidly
imposed by dominant players or de facto monopolies threatens to undermine much of the effort
currently underway and to leave everything to a very abstract level.
On the other hand, the application of open standards in a broader context also means to build a
transparent and fair foundation toward an effective and distributed technological innovation.
43 From the OASIS 'Frequently Asked Questions' page at http://www .oasis-open.org/who/faqs.php .
For further details about the IPR policies promoted by OASIS, see this specific section of their website:
http://www .oasis-open.org/who/intellectualproperty.shtml
International Free and Open Source Software Law Review Vol. 3, Issue 1
24 Interoperability And Open Standards: The Key To True Openness And Innovation
About the author
Simone Aliprandi is an Italian attorney-at-law and researcher who is constantly engaged in writing,
teaching and consulting in the field of copyright and ICT law. He has an additional degree in Public
Administration Science and he is finishing a Ph.D. program in Information Society at the Bicocca
University of Milan. He founded and still coordinates the Copyleft-Italia.it project and has published
several books devoted to openculture and copyleft. He also collaborates as a legal consultant with
Array (http://www.arraylaw.eu). More information about his activities: http://www.aliprandi.org.
International Free and Open Source Software Law Review Vol. 3, Issue 1
Licence and Attribution
This paper was published in the International Free and Open Source Software Law
Review, Volume 3, Issue 1 (September 2011). It originally appeared online at
http://www.ifosslr.org.
This article should be cited as follows:
Simone Aliprandi (2011) '
', International Free and Open Source Software Law Review,
3(1), pp 5 – 24
DOI: 10.5033/ifosslr.v3i1.53
Copyright © 2011 Simone Aliprandi
This article is licensed under a Creative Commons
Attribution - NoDerivs 2.0 England and Wales licence, available at
http://http://creativecommons.org/licenses/by-nd/2.0/uk/
As a special exception, the author expressly permits faithful translations of the entire
document into any language, provided that the resulting translation (which may
include an attribution to the translator) is shared alike. This paragraph is part of the
paper, and must be included when copying or translating the paper.
