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EU jeopardises its own goals in standardisation with FRAND licensing


On 19 April, the European Commission published a communication on "ICT Standardisation Priorities for the Digital Single Market" (hereinafter 'the Communication'). The Digital Single Market (DSM) strategy 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 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, 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.

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 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.