[patwg-charter] All Working Group members agree to licence input data for specifications on FRAND terms (#30)

jwrosewell has just created a new issue for https://github.com/patcg/patwg-charter:

== All Working Group members agree to licence input data for specifications on FRAND terms ==
Breaking out the discussion from issue [#52](https://github.com/patcg/meetings/issues/52) and PR #18 related to licensing input data. Include wording to guarantee availability of data needed to implement any work of the group summarised as follows.

_From @jwrosewell - “@timcowen has raised an innovative suggestion concerning FRAND terms for the data needed to implement a standard. There is nothing that would prevent such a clause being part of the charter therefore providing all web participants the certainty that should they wish to implement independently the standards of the group those that worked on them have already agreed to not only licence the intellectual property related to patents but also access to the necessary input data from their products. As a concrete example I would know that if Google and Mozilla joined the Working Group that they would licence me the data needed to implement the standard outside of a web browser and there would be no need to negotiate such an agreement with them in the future. However Apple if they did not join the group would be under no such obligation. This concept is identical to intellectual property associated with patents and seems very important where functionality is desirable to implement outside the web browser to avoid the web browser becoming a chokepoint.” - https://github.com/patcg/meetings/issues/52#issuecomment-1167805503_
 
_@timcowen responds - “The FRAND issue is one that arises for those that have market power ( Browsers from Apple and Google – see CMA Mobile Ecosystem Market Study 2022). So, the idea I advanced is that to help W3C (and members) comply with competition law, the Charter should make it clear that FRAND should apply to necessary input data and that discrimination by dominant browsers is not supported or endorsed by W3C. FRAND is a preventative mechanism to help W3C comply and address the economic and market power problem that may arise in developing standards. So, the way it works with relation to Patents (and other IPR) is that when a member of a standards organisation joins that organisation, the organisation requires, in its membership contract, that the IPR owners agree to licence IPRs on FRAND terms. If the implementer of a standard then in its implementation uses and reads on the patent or other IPR, that IPR is licensed on FRAND terms to those that use it. In doing so the standards body avoids the problem that has come up in the past of being complicit in a situation where an IPR holder then seeks to extract a rent from those implementing the standard (this famously happened between Google and Microsoft with relation to IPRs used in X Box). So, to be clear, the point is not about end users licensing anything. It is about ensuring that those that join the group under a Charter and the Charter needs to make it clear that FRAND applies to any essential input data used by browsers. (which may not be clear in the current W3C documents).
It was also observed that W3C standards are voluntary. That is not correct as a matter of competition law since they are in effect mandatory being endorsed by dominant browser owners (see further below).” - https://github.com/patcg/meetings/issues/52#issuecomment-1169927141_

_“Compliance
Finally, and hopefully to avoid any residual confusion, as a matter of compliance for all, I have observed that the Charter could be improved if it included an express reference to licencing necessary input data on FRAND terms. That would be the basis on which agreement to the work of the groups would operate. While it has been observed that W3C makes voluntary standards, they are in effect mandatory since they will be endorsed by the dominant browser organisations and become the basis on which all others in their ecosystems then trade. ( see for further information on competition law, FRAND and standards Section 7 in the following: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:52011XC0114(04)” - https://github.com/patcg/meetings/issues/52#issuecomment-1169927141_


Please view or discuss this issue at https://github.com/patcg/patwg-charter/issues/30 using your GitHub account


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Received on Wednesday, 29 June 2022 14:50:37 UTC