As you may have noticed, I’ve been <a href=http://blogs.computerworlduk.com/open-enterprise/2010/10/a-final-few-words-on-frand-licensing/>writing quite a lot recently about the imminent European Interoperability Framework (EIF), and the extent to which it supports true open standards that can be implemented by all. Of course, that’s not just a European question: many governments around the world are grappling with exactly the same issue. Here’s a fascinating result from India that has important lessons for the European Commission as they finalise EIF v2.
As you might expect, the free software community in India has been fighting similar battles to those still raging in Europe. Here, for example, is the <a href=http://osindia.blogspot.com/2010/11/indian-open-standards-policy-finalized.html>wording that was originally proposed for the section dealing with open standards in India’s National Policy on Open Standards for e-Governance:
An Identified Standard will qualify as an “Open Standard”, if it meets the
4.1.2 The essential patent claims necessary to implement the Identified Standard should preferably be available on a Royalty-Free (no payment and no restrictions) basis for the life time of the standard. However, if such Standards are not found feasible and in the wider public interest, then RF on Fair, Reasonable and Non Discriminatory terms and conditions (FRAND) or Reasonable and Non Discriminatory terms and conditions (RAND) could be considered.
There are some obvious pitfalls in this formulation, as Red Hat’s Venkatesh Hariharan points out in a <a href=http://osindia.blogspot.com/2010/11/indian-open-standards-policy-finalized.html>blog post where he reproduces his submission to the government on behalf of his company:
While the term “Mandatory Characteristics” indicates that section is binding, the usage of terms like “should preferably” conveys the impression that this is non-binding. Since thousands of government agencies, systems integrators and others connected with e-Governance will look up to this policy for guidance, we request that the mandatory characteristics should be laid out clearly and unambiguously.
The term “essential patent claims,” is not defined in the policy and this could prove to be a huge loophole. This term is also a new introduction and it would have been helpful to know the rationale for its introduction. Ultimately, any patent necessary for the implementation of a standard is an “essential patent claim” because a standard cannot be implemented partially.
Happily, the Indian authorities have listened to this and other similar representations; here is the final form of that crucial clause [.<a href=http://egovstandards.gov.in/approved-standards/egscontent.2010-11-12.9124322046/at_download/file>pdf] on its <a href=http://egovstandards.gov.in/>e-Governance Standards site:
4.1.2 The Patent claims necessary to implement the Identified Standard shall be made available on a Royalty-Free basis for the life time of the Standard.
As you can see, there is no room for doubt here, no quibbling with “RF on Fair, Reasonable and Non Discriminatory terms and conditions (FRAND)” or “Reasonable and Non Discriminatory terms and conditions (RAND)” as the earlier version suggested: just a clear and simple “ Royalty-Free basis for the life time of the Standard”.
This is a particularly important result because India is a fast-rising power, particularly in the world of high technology. That means the knock-on consequences of its practices will be felt far beyond its borders. For example, if the new version of the European Interoperability Framework were to opt for FRAND instead of restriction-free, this would tilt the playing-field against free software in that part of the world, whereas in India it would be compete on an equal basis.
As a result, free software would be more likely to flourish in India than it would in Europe, since it would not be shut out of some government contracts constrained by proprietary standards, with all that this means for lack of choice and higher costs. India will end up with a richer and more dynamic software ecosystem than Europe, which will further disadvantage European coders struggling with economies that are not of the healthiest.
What might be called the main takeaway from India’s important decision is that the way forward is with open standards that mandate restriction-free licensing of any patents claimed in the technologies concerned: let’s hope that the European Commission gets it.
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