Intellectual property licensing tensions: utilising open source software in the formal standard-setting context

Jingze Li

Abstract


Open source software (OSS) is playing an increasing role in information and communication technology (ICT) standards. Many standard development organisations (SDOs) are exploring approaches to incorporating OSS into their standard-setting context. How to address intellectual property rights (IPRs) represents one of the challenges they are facing. This paper depicts the difference between open source licenses and IPR policies of SDOs in addressing copyright and patent right. We found that the current IPR frameworks, including the FRAND license commitment for patented technologies and copyright rules for software in standard specifications of the three SDOs (ITU, ETSI, and IEEE), show gaps in avoiding tensions in their interaction scenarios such as implementing standards in open source projects and utilising open source projects for standardisation activities. Some of these concerns might currently be hypothetical, but their significance will likely increase. We suggest that SDOs could change some of the existing rules and design a model utilising OSS according to their specific goals.

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