Transcript ITU WORKSHOP ON STANDARDS AND INTELLECTUAL PROPERTY RIGHTS (IPR) ISSUES Session 5: Software copyright issues Dirk Weiler, Chairman of ETSI General Assembly and.

ITU WORKSHOP ON STANDARDS AND
INTELLECTUAL PROPERTY RIGHTS (IPR) ISSUES
Session 5: Software copyright issues
Dirk Weiler, Chairman of ETSI General Assembly and IPR Special Committee
© ETSI 2011. All rights reserved
Software Copyright - Standards
Already in an ETSI 'Standards, open standards and Interoperability"
workshops series in 2005, it was discussed whether, in the light of the
increasing role of software in ICT, ETSI might have to start a reflection on
its copyright IPR policy within its (mostly) patent related IPR policy.
In the light of an increase in copyright requests to ETSI for the use of
software, which has been included in an ETSI Standard or Technical
Specification, it was agreed in 2008 that there is a need for guidance on
software copyright related to ETSI Standards and Technical Specifications.
In November 2011, the ETSI General Assembly agreed to modify the ETSI IPR
Policy (RoP Annex 6) and the ETSI Guide on IPRs with respect to the inclusion
of text to ensure the appropriate handling of Software Copyright issues as
outlined in this document.
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Copyright in ETSI Standards
Clause 9.1 ETSI IPR Policy
“The ownership of the copyright in STANDARDS and
TECHNICAL SPECIFICATIONS documentation and reports
created by ETSI or any of its COMMITTEES shall vest in ETSI but
due acknowledgement shall be given to copyrights owned by
third parties that are identifiable in ETSI copyrighted works.”
Publication by ETSI
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http://pda.etsi.org/pda/queryform.asp
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Modification to ETSI Directives in 2011
Background (1)
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The general outset was that Standards and Technical
Specifications should provide a description of features from
which competing and interoperable implementations can be
developed and should not serve as an endorsement for any
particular solution.
At the start of the discussions within ETSI, it was proposed
that one basic principle with regards to software copyright
should be a "strong discouragement of the inclusion of any
software that is likely to raise IPR issues“.
After analysing the status quo of software in standards in ETSI
but also in other SDOs, it became apparent that "software"
appears to be interpreted rather broadly and to comprise
many formal languages which ETSI doesn’t want to be
excluded from being used in ETSI Standards per se.
Modification to ETSI Directives in 2011
Background (2)
If a formal language is used in a normative part for describing a
standardized functionality, this does not necessarily endorse the
usage of this language for the implementation of a standard
compliant product. Formal (description) languages are widely used
in many standards, while formal (programming) languages appear
to be used only exceptionally, for example in CODEC standards.
On this basis, simply “excluding” any “software” from standards
wouldn’t appropriately meet the requirements of standard setting
within ETSI.
Further, it was clear consensus that as a general rule Standards
should provide a description of features from which competing and
interoperable implementations can be developed and should not
serve as an endorsement for any particular solution.
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Modification to ETSI Directives in 2011
Background (3)
Although Clause 9.1 of the ETSI IPR policy foresees that the
ownership of the copyright in STANDARDS and TECHNICAL
SPECIFICATIONS documentation and reports created by ETSI or any
of its COMMITTEES shall vest in ETSI, it cannot be excluded that
certain copyrights on software may still remain with the authors,
e.g. non-transferable copyrights or certain copyrights that are
identifiable and not being part of collective work of the ETSI
Deliverable.
ETSI members indicated an exceptional coincidence of their
business models insofar as nowadays neither ETSI nor any of its
members seem to have a significant business case based on
copyright which may rest on any expressions used in ETSI
deliverables. This holds particularly true for the usage of formal
(description) languages.
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Modification to ETSI Directives in 2011
Modifications (1)
The modified ETSI IPR Policy covers the different aspects of
copyright licenses for software being part of ETSI Standards or
Technical Specifications.
Copyright licences for contributed software shall come
"automatically" on a royalty-free basis for all scenarios of use of
such software whenever copyright protected software is
contributed "silently", i.e. without any statement of the contributor
on copyright which may rest on the contribution.
Any contributor can avoid this automatism for the purpose of using
the software in any compliant implementation of standards by
giving an irrevocable FRAND licensing undertaking in relation to the
software.
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Modification to ETSI Directives in 2011
Modifications (2)
Scenarios of use for the copyright license as set out in Clause
9.2.1 of the IPR Policy:
•
To ETSI members to evaluate software and any derivative works
thereof for determining whether to support the inclusion of
software;
• To ETSI to publish the software being part of the Standard or
Technical Specification;
• To any implementer to evaluate the software and any derivative
works thereof for inclusion in its implementation of the Standard or
Technical Specification, and to determine whether its
implementation conforms with the Standard or Technical
Specification;
• To any implementer to use the software in any compliant
implementation of the Standard or Technical Specification.
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Modification to ETSI Directives in 2011
Modifications (3)
Additional considerations relating to the licensing of copyright
have been taken into account: e.g.
(a) Copyright licenses shall not contain additional restrictions
other than as set out in Clause 9.2.1 ETSI IPR Policy;
(b) A warranty provision underlines the responsibility of the
member contributing software to clarify whether the
copyright licensing conditions set out in the ETSI IPR Policy are
met.
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Modification to ETSI Directives in 2011
Modifications (4)
The modifications to the ETSI IPR Policy and the ETSI Guide on
IPR do not change the existing IPR regime but only
complement it with the target to increase legal certainty and
to avoid new administrative burdens.
The main reason for a royalty-free default license for software
copyright was mainly based on the idea not to put an extra
administrative burden on the process of elaborating standards
for technical committees.
There was no intention to have a shift in the ETSI IPR regime
towards a preference for royalty-free licensing. The basic
principle of the ETSI IPR regime remains FRAND with no
specific preference for any licensing model.
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Conclusions
ETSI IPR Policy is one of the key elements for the success
of ETSI’s globally-applicable standards.
Recent modifications clarify the handling of software
copyright for software being part of ETSI Standards and
Technical Specifications for all parties involved.
ETSI is effectively facing new challenges and, where
necessary, adapts/clarifies its Tools and Directives to meet
the requirements of a changing environment.
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Thank you!
For further information please contact: [email protected]
© ETSI 2011. All rights reserved