Spicy IP is delighted to bring forth for its readers an incisive and insightful guest post from Bob Jolliffe, a South African standards activist, on a response to the e-Governance standards post. Bob is a founding director of the Freedom to Innovate Foundation, South Africa.
Bob is a frequent speaker on-Governance and standards and one such talk on e-Governance/standards is available here.
Guest Post: A response to the draft e-Governance policy
I think the point that this author makes about RAND terms is essentially correct – and that Richard Stallman and POS-e-Gov are not.
The important thing about “RAND terms” is that they are infinitely variable. Reasonable” (or sometimes Fair and Reasonable) and “non-discriminatory” are open to interpretation and negotiation. In almost all cases the SDOs coordinating the development of the standard have adopted a hands off position regarding this. So whereas it might seem obvious to conclude that RAND would imply that all implementors would be entitled to uniform and reasonable licence terms this appears not to be the case. And I can’t think of an example where an SDOs does specify such a constraint. There are cases of SDOs obliging members to specify a *maximum* licence cost as part of their IP declaration/commitment but this is not common. I suppose that this would roughly correspond to the fees being “published” referred in the RAND definition in the glossary of POS-e-Gov.
From a client or user’s perspective, such as government, royalty free is the least ambiguous Though even there we know there are different shades as reflected in promises, covenants etc as we have seen with IBM, Sun and Microsoft. Usually there is some form of protective measure to protect the licensor from being counter-sued for patent infringement by the licencee. And there are interesting variations on rights being granted irrevocably on subsequent versions etc. But, whilst being mindful of these flavours, there is a much more reasonable degree of certainty about a royalty free arrangement.
So the problem we are faced with is what to do when there is not a royalty free standard available and appropriate for a domain. Assuming that royalty-free will always be preferable on a spectrum of openness. The solution is not so simple as to say that in those situations we will consider standards available on RAND terms, because as we know RAND effectively means anything goes. We would ideally like SSOs to provide more guidance in terms of describing the RAND terms for a particular standard but they, for a variety of reasons related to their own self-preservation, are reluctant to do so.
I suspect, and I think I’ve expressed this before, the only solution for a state body who wishes to raise the bar on how open is sufficiently open, is for for that body to specify a rubric itself. So for example, the glossary refers to one definition of what might be considered reasonable and non-discriminatory. If these are the desirable characteristics they should be spelt out as requirements rather than being offered as a generally understood definition of RAND .
To “fix” the glossary entry would require wording along the lines of:
“RAND An abbreviation for Reasonable And Non-Discriminatory , is a phrase that international standards groups use to describe terms to which a patent contributor to a standard must adhere. In the absence of a universal unambiguous understanding of Reasonable and Non-Discriminatory, this policy will consider those terms to mean that if a technology which is part of the standard is to be licensed for a fee, the terms must be (i) non-exorbitant, (ii) published, and (iii) the same for all implementers (rather than subject to individual negotiation). Standards which are not available under such terms will not be considered to be RAND .”
Regarding the applicability of 3(k) it would have been nice to see something in the policy which highlights it rather than ignoring it. Regarding the participation of giants, the article is right to say they should be invited to comment. And I would be most surprized if they hadn’t. But to infer that the policy should be shaped to fit the IP agenda of giants seems to be suggesting a course of action which should not be a public policy objective. Government is driven by a democratic imperative which it is obliged to pursue. The giants have no such obligation.
