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By Adam Warner On 16 August 2001 the W3C made public a proposal to substantially change their patent policy framework. Amongst the changes is support for a new licensing model (called RAND) that legitimises the W3C's role in developing and promoting standards that could require the payment of royalties. This is a substantial shift in the philosophical direction of the W3C and should be of extreme concern to anyone who values being able to implement W3C standards in a royalty-free manner. In particular this has profound implications for the support and implementation of future W3C standards by the free software community. It is likely to extinguish free software development and deployment in the areas where the payment of royalties is required. The last call review period closes on 30 September 2001 (two days from the time I am writing this abstract). The W3C is aware of the importance of this issue and states "As the policy has ramifications on the Web community at large, and as the Web Community have consistently helped W3C in its efforts, views from this diverse community are essential."[1] However, as evidence of how well this issue has been publicised, only two relevant public comments have been made to the W3C archive to date. It is a matter of urgency that you make your views known. A final policy is expected from the W3C by February 2002. Please email all comments or suggested corrections to this document to comment@openphd.net. This draft is copyright Adam Warner, 28 September 2001. It may be distributed freely. Table of Contents
An Overview of the W3C The World Wide Web Consortium (W3C, http://www.w3.org) has been highly successful to date in its pursuit of "leading the Web to its full potential". It actively promotes vendor neutral open and universal standards. Its membership is to be commended for its ability to achieve consensus and coordination with other standards bodies and consortia. The W3C has over 500 member organisations and approximately 66 full-time employees. Even large and influential companies have only one vote at the Advisory Committee level. Tim Berners-Lee, the Director of the W3C (http://www.w3.org/People/Berners-Lee) is also the inventor of the World Wide Web. The W3C is a distinguished organisation producing quality specifications, guidelines, software and validation tools. The W3C is involved in these important areas:
Crucially the work of the W3C is available to all.
The W3C has an ongoing role in the development of the World Wide Web
from purely static document hosting to dynamic documents, application
services and automated applications. The W3C recommendation process typically follows a five step procedure:
The W3C's Patent Policy Framework is at the Working Draft stage. The Working Draft plainly states: "This Last Call period will be the only opportunity for public comment."[2] Remember that "The Last Call period closes 30 September 2001." Furthermore, "As we have begun to use portions of the policy in the day-to-day operations of W3C, we plan to skip the Candidate Recommendation and move directly to an Advisory Committee Review of a Proposed Recommendation draft." Later in this article I will show some of the consequences of this in the release of the Scalable Vector Graphics (SVG 1.0) Recommendation. RAND Licensing This is the new licensing model the W3C is proposing that will allow for non-royalty-free standards to become W3C sanctioned recommendations. RAND stands for "Reasonable And Non-Discriminatory" terms. "RAND means that someone may or may not need to pay a fee, and that it is at the discretion of the license holder."[3] In essence it requires that any company that imposes licensing restriction must impose those restrictions uniformly (the non-discriminatory part of the definition). It appears to follow that non-commercial organisations cannot be given any preferential treatment over commercial organisations since that would be discriminatory licensing. The Working Draft (http://www.w3.org/TR/patent-policy/) (reproduced in the Patent Policy Frequently Asked Questions, http://www.w3.org/2001/08/16-PP-FAQ) also states that RAND allows for licensing audits (RAND "may include reasonable, customary terms relating to operation or maintenance of the license relationship such as the following: audit (when relevant to fees), choice of law, and dispute resolution.")
Legitimising RAND
As part of the theoretical underpinning of this new policy we are told: "On the other hand, there are other technologies, typically higher level, where it might be appropriate to accept fee-bearing requirements in a Recommendation. It is worth restating that, as of today, W3C is not aware of any fee-based license required for any of its Recommendations. Thus, there is an established history of RF [Royalty Free]." This distinction between lower and higher level technologies appears to be somewhat arbitrary and misleading. Any technology that becomes sufficiently used on the World Wide Web will become a part of everyday infrastructure. For example it might be considered that a moving picture format is sufficiently high level for RAND licensing to be appropriate. But if that moving picture format becomes an integrated baseline technology in future products then the chance of a future fee being associated with that technology could be devastating.[4] The W3C has recognised the pressures from (some of) its members to be able to exploit the potentially lucrative Internet-related patents they have been accumulating. There appears to be a resignation that it may be better for the W3C to promote standards that have non-free conditions attached rather than to receive no consensus on potential recommendations. However by doing this the W3C is diminishing the significant tool they have to encourage royalty-free licensing: their official stamp of approval on Internet technologies and credit to the companies that provide those technologies. The support of the W3C is an important factor for a web-based standard to achieve dominance. A company might be willing to provide their intellectual property on royalty-free terms to receive W3C approval and thus an increasing chance for their sponsored standard to become widely adopted. Now those same companies may think they can get the best of both worlds: A W3C recommendation and the reserved right to charge licensing fees in the future. The prospect of future fees could also have a chilling effect upon free/open source software development. Standards that require licensing fees to implement are, for obvious reasons, totally incompatible with the use of free software. If the free/open source software communities will not be able to rely upon the W3C to pursue royalty-free standards the question has to be raised whether the support of a new institution is appropriate. Given my admiration for all the W3C has contributed to the development of the World Wide Web this would be a tragic development.
Back-door RAND
This means oversight, negligence or perhaps deception is rewarded by requiring the commitment to a RAND license rather than a royalty-free one. If a relevant patent was disclosed at the appropriate time it might have been worked around, or the working group may have even disbanded. For members to face a financial incentive to disclose there should be a deterrent in the form of royalty-free licensing. Few things would be more lucrative than being entitled to charge RAND fees on an established W3C web standard though a simple oversight. RAND in Action Even though RAND is only a Working Draft and public comment has for the first time been solicited (and very shortly closes) the W3C has already begun using RAND in its day-to-day operations. This can be seen in the recently released Scalable Vector Graphics Standard (SVG 1.0): http://www.w3.org/2001/07/SVG10-IPR-statements.html Apple, IBM, Eastman Kodak and Quark have all only been willing to supply their intellectual property or potential future intellectual property under RAND licensing terms. This means that in the event that one of their patents overlap the SVG specification they have reserved the right to start charging royalties or set other licensing restrictions upon a non-discriminatory basis. Presently the SVG specification is free to use. The uncovering of a favourable patent or a legal reinterpretation could change that. For example it is stated: "Kodak does not believe it currently has any essential claims that fall within the specification of the Recommendation as currently understood and interpreted by Kodak for implementors of SVG. However, Kodak hereby identifies U.S. Patent 5,459,819 and affirms that in the event that any claim of this patent is interpreted as an essential claim within the specification of the Recommendation in its current or later amended form, Kodak agrees to provide a RAND License as set forth in the previous paragraph." The significant change here is that Kodak (as a particular example) are not giving standards users an assurance that they will be able to continue to use SVG on a royalty-free basis in the future. A windfall judgement and we could have a problem of GIF-style proportions--even though SVG is a W3C sanctioned standard and the company potentially doing the enforcing helped create the standard for people to freely use in the first place. Users could feel far more secure that SVG will remain a free standard if for example Kodak said that in the event that any claim of their patent is interpreted as an essential claim within the specification of the Recommendation in its current or later amended form, Kodak agrees to provide a royalty-free license. What You Can Do
It is also stated here: http://www.w3.org/2001/08/patentnews that "W3C Members Apple, AT&T, Hewlett-Packard, IBM, ILOG, Microsoft, Nortel Networks, The Open Group, Philips Electronics, Reuters, and Sun worked on this draft together with W3C Team members." Essential Reference W3C Patent Policy Framework, W3C Working Draft 16 August 2001: http://www.w3.org/TR/patent-policy/ Backgrounder for W3C Patent Policy Framework: http://www.w3.org/2001/08/patentnews Patent Policy Frequently Asked Questions (FAQs): http://www.w3.org/2001/08/16-PP-FAQ
SVG 1.0 Patent Statements:
Notes  
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