The IGF and Open Standards

The IGF (Internet Governance Forum) recently held its 3rd meeting from the 3rd-6th December at Hyderabad. The IGF is an outcome of the World Summit on the Information Society which took place in 2005 where Governments had asked the UN Sec-Gen to convene a new forum for policy dialogue to discuss issues related to key elements of Internet governance in order to foster the Internet’s sustainability, robustness, security, stability and development. Meant to serve as a platform for dialogue between stakeholders, the IGF was seen as a ‘process of dialogue and discussion that helps in reaching decisions elsewhere’.

The overall theme was “internet for all” and the 3 day event was divided so as to broadly cover 5 main themes.

“Reaching the next billion”, “Promoting Cyber-Security and Trust”, “Managing Critical Internet Resources”, “Emerging Issues” and “Taking Stock and the way Forward”. From an IPR perspective, it was noted that interoperability, and thereby standardization presents a important issue.

The emergence of the internet, arguably the single most important technological advancement in the recent past represents a platform with no pre-existing hierarchies. What this implies is thereby promise for a structure which allows for a more open and equal society – a structure which, now out of its infancy, is in danger of being harnessed for specific interests. It is with this in mind that one must look at Open Standards in e-governance. (Readers will remember Suchita’s previous post on open standards in e-governance.) Open standards are by their nature platform-independent, collaboratively developed and vendor-neutral. Also, access measures via Open Standards do not depend on any commercial intellectual property. (Note, this does not mean that IPRs are not involved at all, merely that access measures are free from commercial IPRs). Not to be confused with Open Source which are software defined by its ‘community development’ and its ‘distribution model’, Open Standards are the sets of ‘building blocks’ so to speak, which allow interoperability of different systems, platforms and devices. In an analogy given by Luis Villa, on why Open Standards matter, he talked about a big fire which had occurred where firefighters from neighbouring states had to be called in for help. On arrival however they couldn’t do anything to help because their hoses wouldn’t fit the present state’s hydrants. Likening this to the situation of vendor lock-in, he stresses on the importance of allowing Open Standards.

The importance of Open Standards was stressed upon in the recent IGF meeting by the “Dynamic Coalitions on Open Standards” (DCOS). The DCOS focuses on best practices in government policy and procurement practices for public documents and services. As per their site:

“IT standards, although not created by legislatures, states or courts, create regulatory structures that transcend international boundaries, affect numerous public policy issues and impact developing countries and many stakeholders who don’t have an equal voice in their creation, management or adoption. There are significant problems in our global IT standardization ecosystem. In many regards, ICT standards are being privatized, and there has been little public debate on this development. Ultimately, this hurts consumer choice, equitable access, competition and innovation. “

In furtherance of their objectives, the DCOS released an agreement on procurement on the last day of the meeting – “The Dynamic Coalition on Open Standards (DCOS) Agreement on Procurement in Support of Interoperability and Open Standards”. Under this agreement, governments, publicly funded and non-profit institutions agreed to measures for the promotion of interoperability and accessibility through the use of open standards and, by 2010, agree that procurement of all software should be vendor neutral and implement open standards.

For the purposes of the agreement, the position of the EU’s draft European Interoperability Framework on the definition of “open standards” was used. It is reproduced below.

1. The open standard is adopted and will be maintained by a not-for-profit organisation, and its ongoing development occurs on the basis of an open decision-making procedure available to all interested parties (consensus or majority decision etc.)

2. The open standard has been published and the standard specification document is available either freely or at a nominal charge. It must be permissible to all to copy, distribute and use it for no fee or at a nominal fee.

3. The intellectual property – i.e. patents possibly present – of (parts of) the open standard is made irrevocably available on a royalty free basis.

4. There are no constraints on the re-use of the standard.

(IDABC EIF v2 draft)

As seen in this adopted definition (and as mentioned in the agreement), technical barriers and barriers to entry are sought to be reduced. This allows any interested party to implement the standards and to compete on quality and price thereby encouraging more competition and innovation, with no limitations arising from the patent associated with the standard in question. However this definition could possibly create a problem with licensing in IPRs as there are several parties which don’t support a strictly royalty free approach , including the European Standardization Commission, which support RAND/FRAND (Reasonable and Non Discriminatory / Fair RAND) licensing. The criticism to this lies in the difficulty of interpreting ‘reasonable’ and thereby the risk in allowing the monopolistic minded to determine what is or what is not reasonable.

There are currently two forms through which interoperability can be achieved – i.e. through proprietary standards and non-proprietary standards. Personally being in favour of non-proprietary standards, I submit what may be a rather simplistic question, but also a very basic one. There being no decisive evidence or proof demonstrating actual benefits which proprietary standards hold over non-proprietary standards, why should a Standard which has more encumbrances be chosen over one which is has less or none? Of course, if a technically superior standard exists which is based on F/RAND and the other option is a freely available standard which is inferior to that standard, it is likely that the technologically superior one will be selected.

There is also the common criticism which now arises over the usage of IPRs. As quoted by Neelie Kroes, European Commissioner for Competition Policy:

    • There are so many patents, whose scope is sometimes less than crystal clear, that it can be harder to know what patents read on a particular technology.

    • There are also concerns that patents are now often used strategically and no longer primarily to protect innovation.

    • Laws on copyright and trade secrets rightly do not require disclosure of software source code before protection is granted.

    • Trade secrets are not limited in time – and in effect, as far as technology is concerned, neither is copyright.

    • And of course copyrights and trade secrets may not be technologically innovative

Thus raising the possibility of perpetual exclusion based on technology which is not even innovative.

Another controversial issue which arises in this regard is the issue of Multiple Standards. On one hand, competition between standards is a further extension of the prevention of vendor lock-in argument, while on the other hand Multiple Standards could result in a confusion and raise in costs for everyone. It would be prudent to realize that finding a Standard beneficial today and fixing it as the standard does not preclude us from the possibility of being locked in tomorrow. It is also submitted that considering the variety of types of usages which these Standards would be applied to, Multiple Standards are an optimal method of ensuring a ‘comforted fit’ standard to different tasks. Currently, in our own Draft Policy, Multiple Standards are being provided for.

ACTA criticized.

Aside from the DCOS agreement on procurement, there was also substantial mention of the ACTA. . According to IP Watch, it was pointed out that the curtains behind which the ACTA negotiations were taking place would bring about difficulties in its adoption later on. The ACTA negotiations so far have been very secretive and have failed to incorporate two of the basic pillars on which the models such as the IGF are based upon – ‘enhanced cooperation’ and ‘multi-stakeholderism’. According to Brazilian diplomat Everton Lucero who was present at the meeting, the ACTA indicates “a pattern of behaviour of some governments which openly defend multi-stakeholderism, democracy and inclusion, but prefer to follow restricted, behind-doors, exclusive arrangements to negotiate new legal instruments.”

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