Vittorio Bertola (17/12/2021). Open Standard. In Belli, L.; Zingales, N. & Curzi, Y. (Eds.), Glossary of Platform Law and Policy Terms (online). FGV Direito Rio. https://platformglossary.info/open-standard/.
Author: Vittorio Bertola
An open standard is a standard that is developed through open processes and can be used and implemented by every interested party under non-discriminating conditions, and if possible for free.
Different standardization organizations adopt different definitions for the term, which generally agree about the fact that the standard must have been developed through an open consensus process that does not exclude or disadvantage any stakeholder but disagree on the intellectual property licensing requirements. Under that aspect, the definitions and the resulting policies can be broadly grouped into two categories:
- Definitions that require the standard and the related essential intellectual property to be available for free, without requiring negotiations with intellectual property holders or the payment of royalties; this is for example the policy of the World Wide Web Consortium (Dardailler, 20071; Weitzner, 20042);
- Definition that requires the standard and the related essential intellectual property to be available under “fair, reasonable and non-discriminatory” (FRAND) licensing terms, which may however include the payment of royalties and/or a discretionary negotiation with the rights holder; this is for example the policy of the ITU-T (ITU, 2005)3.
FRAND technologies can be a significant obstacle to projects that do not have any amount of funding or do not have the legal capabilities to deal with licensing negotiations, such as many open-source projects.
The Internet Engineering Task Force “prefers” technologies that are not subject to patents or whose patents are royalty-free but accepts FRAND technologies if necessary (Bradner and Contreras, 2017). A similar stance is taken by the European Union, whose definition of open standard can be found in Annex II to Regulation 2015/2012 (EU Regulation, 2012)4; the European Commission has repeatedly addressed the problems connected to a fair interpretation of the FRAND concept (European Comission, 2017)5.
- Dardailler, D. (2007). Definition of open standards. World Wide Web Consortium, 29. https://www.w3.org/2005/09/dd-osd.html.
- Weitzner, D. J. (2004). Standards, patents and the dynamics of innovation on the world wide web. Working paper MIT Computer Science and Artificial Intelligence Laboratory. https://www.w3.org/Consortium/Patent-Policy-20170801/.
- ITU. (2005). IPR Ad Hoc Group. Definition of Open Standards. https://www.itu.int/en/ITU-T/ipr/Pages/open.aspx.
- European Commission. (2012). Regulation (EU) N˚ 1025/2012 of the European Parliament and of the Council of 25 October 2012. On European standardisation, amending Council Directives 89/686/EEC and 93/15/EEC and directives 94/9/EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC 2007/23/EC, 2009/23/EC and 2009/105/EC of the European parliament and of the council and repealing council decision 87/95/EEC and decision no 1673/2006/EC of the European Parliament and of the Council. Available at: https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:316:0012:0033:EN:pdf
- European Comission. (2017). Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee. Available at: https://ec.europa.eu/docsroom/documents/26583/attachments/1/translations/en/renditions/native.