(7) Both intellectual property rights (IPRs) and standardisation encourage innovation and facilitate the dissemination of technology. However, as they contribute to these common objectives by different means, due regard needs to be paid to the interrelation between IPR and standardisation. The Commission supports the view that standards should be open for access and implementation by everyone, with IPRs relevant to the standard being taken into consideration in the standardisation process, aiming to establish a balance between the interests of the users of standards and the rights of owners of intellectual property. In the Guidelines for cooperation17 between the EC and EFTA and the ESOs, the ESOs have committed themselves to ensure that standards, including any IPRs they might contain, can be used by market operators on fair, reasonable and non-discriminatory conditions (FRAND). However, standardisation stakeholders, including public authorities, have been confronted with issues raised by the interplay of IPRs and standards, in particular in the ICT field.

­The Commission encourages the ESOs to continue their efforts to make the FRAND policy effective and to develop mechanisms to prevent abuses of the standard-setting process. ­The Commission will launch a fact-finding study to analyse the interplay of IPR and standards.

And elsewhere in the report:

Following consultation with stakeholders, the Commission will in 2008 seek a broad agreement on how ICT standardisation policy will be revised, to be followed by policy proposals, in particular regarding the possible revision of Council Decision 87/95/EC on ICT standardisation.

And beware of the high level expert group, you know what it gives when it is too high level:

The Commission will set up a high level expert group to identify the future scope and role of European standardisation and to develop strategic recommendations for the coming decade.

WRITTEN QUESTION E-1218/08
by Raül Romeva i Rueda (Verts/ALE)
to the Commission

Subject: Use of patented software standards within public
administrations

The 'European ICT crossroads: A new direction for global success' conference organised by the Commission's DG Enterprise and Industry on 12 February 2008 could turn out to have been a decisive moment for communications and information in the EU. The idea contained in the conference's title, at least, should be a turning point. It also embodies the very essence of what could be seen as the ideal framework for a wideranging and open discussion – without pre-formed ideas – on defining a European strategy on communications, in the search for tools and systems, with a major potential for the future, that are and within the grasp of a greater number of citizens. However, a quick assessment of the discussion document reveals certain worrying features, indicative of a certain tendency towards standardisation by means of patents, which in practice involve the exclusion of free software which is available free of charge. The document clearly supports the (F)RAND option with regard to managing intellectual property rights, which in practice implies not only that a choice has been made beforehand, but furthermore that this choice favours a system which benefits, and is in the hands of, the large software developing companies, rather than users. The document actually explicitly states, several times, that it is impossible for the legislators to impose cost-free status under these circumstances. This means that the commitment to patented standards could run contrary to fundamental principles such as equality, particularly with regard to access to information, and could hamper the implementation of the manifest desire to encourage more effective communication with citizens, which is crucial to the objective of encouraging citizens to identify more closely with the institutions and with European integration. This being so,

Has the Commission taken into account the important, and still increasing weight of open-code software within the information society and the economy in Europe? Does the Commission not think that it is necessary thoroughly to revise the stances adopted in the discussion document, and launch the debate from a broader perspective? Does the Commission not think that the option proposed runs contrary to the Lisbon Strategy of turning the EU into the world's most competitive economy based on the knowledge society, in which development and guaranteed free access to information technology are
decisive?

The position of the DG Enterprise is definitely to prefer RAND patented standards, and exclude free software from public administrations.