1. 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

2. 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. 2

3. 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 ETSI publishes all ETSI Standards and Technical Specifications free of charge via its publications download area http://pda.etsi.org/pda/queryform.asp http://pda.etsi.org/pda/queryform.asp 3

4. Modification to ETSI Directives in 2011 Background (1) 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 doesnt want to be excluded from being used in ETSI Standards per se. 4

5. 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 wouldnt 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. 5

6. 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. 6

7. 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. 7

8. 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. 8

9. 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. 9

10. 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. 10

11. Conclusions ETSI IPR Policy is one of the key elements for the success of ETSIs 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. 11

12. For further information please contact: legal@etsi.org Thank you! © ETSI 2011. All rights reserved