Licenses and Availability of Standards¶
Standards are generally developed in a collaborative manner, involving multiple companies, organizations, and individuals. Parts of this collaborative development can look similar to open source software practices. Because of that, newcomers to standards community practices may assume that open source software licensing practices also apply in a similar way.
However, licensing practices for standards are usually significantly different. While open source software is generally freely available to download and redistribute, many standards are only available from the standards body’s website, and in many cases locked behind a paywall. They may be provided under terms that prohibit their redistribution, or even that limit sharing them with other colleagues within a company.
Furthermore, even after lawfully obtaining a copy of the standard, the scope of rights granted to implement the standard may be significantly limited as well. Different standards development efforts use different intellectual property policies as to the patents that are practiced by those standards. While some permit implementers to practice the patents on royalty-free terms, others may require implementers to pay royalty fees.
The following describes some of the intellectual property considerations relating to the licensing of standards.
Copyrights¶
Some standards may be provided under licenses that look familiar to open source developers. These can include licenses primarily intended for open source software such as Apache-2.0, or for open content such as CC-BY-4.0 and other Creative Commons licenses. They may also be provided under even simpler copyright licensing terms that simply allow free redistribution.
From a copyright perspective, these can be easy to comply with for distributing the specification document itself. Requirements such as maintaining copyright notices and license texts, etc., can be followed in the same way as for other open source software and open content.
However, not all standards follow these sorts of practices. Many standards, particularly those that are developed and published by traditional standards bodies, are subject to strict restrictions on redistribution of the specification document. In many cases, access to the document is restricted to the SDO’s website following payment of per-user access fees. While these fees and limitations can severely restrict access to the standard, they reflect some SDOs’ traditional business models which support the SDO’s activities through payment of document license fees.
Open source developers who are working with implementing standards documents should be cautious and aware of the applicable license terms. If a developer individually has access to a standards document under terms that limit redistribution, they should be careful to abide by those restrictions. This may limit their ability, for example, to share portions of the standard with other members of an open source community.
In particular, open source developers should be conscientious when incorporating specific content from the standard into an open source project. This could occur, for example, when implementing part or all of a standard involves copying particular data structures or tables into the project’s source code. Determining whether that content is subject to copyright at all–and if so, whether the standard’s legal terms permit such copying–is something that contributors will likely want to discuss with their own legal counsel.
Patents¶
The applicability of patents and patent licenses to standards is also complex, and different from what may be expected by open source software developers.
For open source software, the patent licenses granted by contributors are applicable to the software – e.g., the collaborative work that is being produced by the contributors. A user of the software wants to understand the scope of licenses to patents that are practiced by the execution of the software itself.
However, for standards, the patent licenses that recipients care about are those that are applicable to implementations of the specification. The specification itself–the collaborative work being produced by the contributors–is a document that describes a process or set of properties. A user of the specification, however, wants to understand the scope of licenses to patents that are practiced by implementations of that specification.
Because of this, many standards development organizations will have a lengthy Intellectual Property Policy that, among other things, describes the scope of any patent licenses that are granted. This may include, for example, topics such as the following:
Does a contributor to the standard grant licenses to only those patents that are practiced by their own contributions; or also to those that are practiced by any part of the specification?
Are patent licenses granted only by contributors to the specification, or also by any participants (e.g. members of the standards development effort), whether or not they actually contribute?
Is there a review period between drafting and formal release of the specification, where a participant may object to or withdraw patent licenses (potentially prompting a revision of the standard)?
Are patent licenses granted as to anything described by the specification, or only for a subset (e.g., mandatory portions of the specification but not optional portions)?
Are any patent licenses automatically granted, or royalty-free but subject to negotiations, or royalty-bearing?
Some standards development organizations have options for different “patent modes,” allowing its working groups to operate under a variety of different options.
These may include names such as RAND or FRAND (fair, reasonable, and non-discriminatory), which typically means that the participants agree to offer patent licenses to any third party. Terms may vary from licensor to licensor, and may require payment of royalties. RAND-RF is similar to RAND, except without requiring payment of royalty fees for practicing licensed patents. Other modes may grant patent licenses, or include agreements not to assert patents, without payment of royalty fees and without a requirement to separately negotiate other license terms.
In all cases, if you are planning to implement a standard in your own product offering, you will want to discuss the applicable IP policy and license terms with your legal counsel to understand its scope and obligations.
