[FSFE PR][FR] EU jeopardises its own goals in standardisation with FRAND licensing

press at fsfeurope.org press at fsfeurope.org
Thu Apr 28 09:45:57 CEST 2016

 = EU jeopardises its own goals in standardisation with FRAND licensing =

[ Version en ligne: https://fsfe.org/news/2016/news-20160428-02.fr.html ]

On 19 April, the European Commission published a communication on "ICT
Standardisation Priorities for the Digital Single Market"[1]
(hereinafter 'the Communication'). The Digital Single Market (DSM)
strategy[2] intends to digitise industries with several legislative and
political initiatives, and the Communication is a part of it covering
standardisation. In general, the Free Software Foundation Europe (FSFE)
welcomes the Communication's plausible approach for integrating Free
Software and Open Standards[3] into standardisation but expresses its
concerns about the lack of understanding of necessary prerequisites to
pursue that direction.

 == Acknowledging the importance of Free Software ==

The Communication starts with acknowledging the importance of Open
Standards for interoperability, innovation and access to media, cultural
and educational content, and promotes "community building, attracting
new sectors, promoting open standards and platforms where needed,
strengthening the link between research and standardisation". The latter
is closely linked to the "cloud", where the Communication states that
the "proprietary solutions, purely national approaches and standards
that limit interoperability can severely hamper the potential of the
Digital Single Market", and highlights that "common open standards will
help users access new innovative services".

As a result, the Commission concludes that by the end of 2016 it intends
to make more use of Free Software elements by better integrating Free
Software communities into standard setting processes in the standards
developing organisations.

In the Internet of Things (IoT) domain, the Communication acknowledges
the EU need for "an open platform approach that supports multiple
application domains ... to create competitive IoT ecosystems". In this
regard, the Commission states that "this requires open standards that
support the entire value chain, integrating multiple technologies ...
based on streamlined international cooperation that build on an IPR
["intellectual property rights"] framework enabling easy and fair access
to standard essential patents (SEPs)".

FSFE welcomes this direction taken in the Communication, as well as the
Commissioner Günther Oettinger's position, highlighted in his keynote at
the Net Futures 2016[4], that "easy reuse of standard and open
components accelerates digitisation of any business or any industry
sector." Furthermore, according to the Commissioner Oettinger, Free
Software standards "enable transparency and build trust."

 == EC putting good efforts at risk ==

However, the attempts of the Commission to promote Open Standards and a
more balanced approach towards "intellectual property rights" policies
in standardisation may be seriously hampered by the Commission's stance
towards FRAND licensing. In particular, the Commission sets the goal to
"clarify core elements of an equitable, effective and enforceable
licensing methodology around FRAND principles" which is seen as striking
the right balance in standardisation and ensuring the "fair and non-
discriminatory" access to standards. Furthermore, it is a well-known
fact that FRAND licensing terms that in theory stand for "fair,
reasonable, and non-discriminatory" terms, in practice are incompatible
with most of Free Software[5].

In conclusion, whilst the Communication sets a positive direction
towards the promotion of Open Standards and the inclusion of Free
Software communities into the standardisation, this direction may be
seriously limited if the Commission fails to acknowledge the
incompatibility of FRAND licensing terms with Free Software licenses.
This in return can in practice make a proper Free Software
implementation of the standard impossible. As a result, the attempts of
the Commission to achieve truly "digital single market" based on
interoperability, openness and innovation will not be achieved as the
significant part of innovative potential found in Free Software will be
in practice excluded from standardisation.

In line with our recommendations on the DSM initiative[6] that got well
received by the Commission, FSFE believes that in order to achieve the
adequate integration of Free Software communities, and the overall
plausible approach towards appropriate use of Open Standards the
Commission needs to avoid the harmful consequences of FRAND licensing to
Free Software, and instead pursue the promotion of standards that are
open, minimalistic and implementable with Free Software. These standards
will give the substance to the Commission's promises to encourage Free
Software communities to participate in standardisation.

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 1. https://ec.europa.eu/digital-single-market/en/news/communication-ict-standardisation-priorities-digital-single-market
 2. https://fsfe.org/activities/policy/eu/digital-single-market-comments.en.html
 3. https://fsfe.org/activities/os/index.fr.html
 4. https://ec.europa.eu/commission/2014-2019/oettinger/announcements/keynote-speech-closing-plenary-session-net-futures-2016-brussels_en
 5. https://fsfe.org/activities/os/why-frand-is-bad-for-free-software.en.html
 6. https://fsfe.org/activities/policy/eu/digital-single-market-comments.en.html

  == About the Free Software Foundation Europe ==

  The Free Software Foundation Europe (FSFE) is a non-profit
  non-governmental organisation active in many European countries and
  involved in many global activities. Access to software determines
  participation in a digital society. To secure equal participation in
  the information age, as well as freedom of competition, the Free
  Software Foundation Europe (FSFE) pursues and is dedicated to the
  furthering of Free Software, defined by the freedoms to use, study,
  modify and copy. Founded in 2001, creating awareness for these issues,
  securing Free Software politically and legally, and giving people
  Freedom by supporting development of Free Software are central issues
  of the FSFE.


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