My dealings with European learning technology standardization colleagues in the last few years have probably been at least as much as any other single CETIS staff member. Because of my work on European Learner Mobility and InLOC, since 2009 I have attended most of the meetings of the Workshop Learning Technologies (which also has an official page), and I have also been involved centrally in the eCOTOOL and to a lesser extend in the ICOPER European projects.

So what is going on now — what is of concern?

In CETIS, we share some common views on the how the standardization process should be taken forward. During the course of specification development, it is important to involve people implementing them, and not just have people who theorise about them. In the case of educational technology, the companies who are most likely to use the interoperability specifications we are interested in tend to be small and agile. They are helped by specifications that are freely available, and available as soon as they are agreed. Having to pay for them is an unwelcome obstacle. They need to be able to implement the specifications without any constraints or legal worries.

However, over the course of this last year, CEN has reaffirmed long standing positions which don’t match our requirements. The issue centres partly around perceived business models. The official standards bodies make money from selling copies of standards documents. In a paper based, slow-moving world, one can see some sense in this. Documents may have been costly to produce, and businesses relying on a standard wanted a definitive copy. We see similar issues and arguments around academic publishing. In both fields, it is clear that the game is continuing to change, but hasn’t reached a new stable state yet. What we are saying is that, in our area, this traditional business model is never likely to be be justified, and it’s diffcult to imagine the revenues materialising.

The European learning technology standardization community have been lucky in past years, because the official standards bodies have tolerated activity which is not profitable for them. Now — we can only guess, because of financial belts being tightened — CEN at least is not going to continue tolerating this. Their position is set out in their freely available Guides.

Guide 10, the “Guidelines for the distribution and sales of CEN-CENELEC publications”, states:

Members shall exercise these rights in accordance with the provisions of this Guide and in a way that protects the integrity and value of the Publications, safeguards the interests of other Members and recognizes the value of the intellectual property that they contain and the costs to the CEN-CENELEC system of its development and maintenance.
In particular, Members shall not make Publications, including national implementations and definitive language versions, available free of charge to general users without the specific approval of the Administrative Boards of CEN and/or CENELEC.

And, just in case anyone was thinking of circumventing official sales by distributing early or draft versions, this is expressly forbidden.

6.1.1 Working drafts and committee drafts
The distribution of working drafts, committee drafts and other proceedings of CEN-CENELEC technical bodies and Working Groups is generally restricted to the participants and observers in those technical bodies and Working Groups and they shall not otherwise be distributed.

So there it is: specification development under the auspices of CEN is not allowed to be open, despite our view that openness works best in any case, and that it is genuinely needed in our area.

As if this were not difficult enough, the problems extend beyond the copyright of standards documentation. After a standard is agreed, it has to be “implemented”, of course. What kind of use is permitted, and under what terms? A fully open standard will allow any kind of use without royalty or any other kind of restriction, and this is particularly relevant to developers of free and open source software. One specification can build on another, and this can get very tricky if there are conditions attached to implementation of specifications. I’ve come across cases where a standardization body won’t reuse a specification because it is not clear that it is licenced freely enough.

So what is the CEN position on this? Guide 8 (December 2011) is the “CEN-CENELEC Guidelines for Implementation of the Common IPR Policy on Patent”. Guide 8 does say that the use of official standards is to be free of royalties, but at the end of Clause 4.1 one senses a slight hesitation:

The words “free of charge” in the Declaration Form do not mean that the patent holder is waiving all of its rights with respect to the essential patent. Rather, it refers to the issue of monetary compensation; i.e. that the patent holder will not seek any monetary compensation as part of the licensing arrangement (whether such compensation is called a royalty, a one-time licensing fee, etc.). However, while the patent holder in this situation is committing to not charging any monetary amount, the patent holder is still entitled to require that the implementer of the above document sign a licence agreement that contains other reasonable terms and conditions such as those relating to governing law, field of use, reciprocity, warranties, etc.

What does this mean in practice? It seems unclear in a way that could cause considerable concern. And when thinking of potential cumulative effects, Definition 2.9 defines “reciprocity” thus:

as used herein, requirement for the patent holder to license any prospective licensee only if such prospective licensee will commit to license, where applicable, its essential patent(s) or essential patent claim(s) for implementation of the same above document free of charge or under reasonable terms and conditions

Does that mean that the implementer of a standard can impose any terms and condition that are arguably reasonable on its users, including payments? Could this be used to change the terms of a derivative specification? We — our educational technology community — really don’t need this kind of unclarity and uncertainty. Why not have just a plain, open licence?

What seems to be happening here is the opposite of the arrangement known as “copyleft“. While under “copyleft”, any derivative work has to be similarly licenced, under the CEN terms, it seems that patent holders can impose conditions, and can allow companies implementing their patents to impose more conditions or charge any reasonable fees. Perhaps CEN recognises that they can’t expect everyone to give them all of the cake? To stretch that metaphor a bit, maybe we are guessing that much of the educational technology community — the open section that we believe is particularly important — has no appetite for that kind of cake.

The CEN Workshop on Learning Technologies has suspended its own proceedings for reasons such as the above, and several of us are trying to think of how to go forward. It seems that it will be fruitless to try to continue under a strict application of the existing rules. The situation is difficult.

Perhaps we need a different approach to consensus process governance. Yes, that reads “consensus process governance”, a short phrase, apparently never used before, but packed full of interesting questions. If we have heavyweight bodies sitting on top of standardization, it is no wonder that people have to pay (in whatever way) for those staff, those premises, that bureaucracy.

It is becoming commonplace to talk of the “1%” extracting more and more resource from us “99%“. (See e.g. videos like this one.) And naturally any establishment tends to seek to preserve itself and feather its own nest. But the real risk is that our community is left out, progressively deprived of sustenance and air, with the strongest vested interests growing fatter, continually trying to tighten their grip on effective control.

So, it is all the more important to find a way forward that is genuinely collaborative, in keeping with a proper consensus, fair to all including those with less resource, here in standardization as in other places in society. I am personally up for collaborating with others to find a better way forward, and hope that we will make progress together under the CETIS umbrella — or indeed any other convenient umbrella that can be opened.

It is worth reading the text of the agreement (just search for a chunk of what I reproduce here). We need go no further than the very first two paragraphs:

The Parties to this Agreement,

Noting that effective enforcement of intellectual property rights is critical to sustaining economic growth across all industries and globally;

Noting further that the proliferation of counterfeit and pirated goods, as well as the proliferation of services that distribute infringing material, undermines legitimate trade and the sustainable development of the world economy, causes significant financial losses for right holders and for legitimate businesses, and, in some cases, provides a source of revenue for organized crime and otherwise poses risks to the public; […]

It’s perhaps not surprising that, if one really believes this, measures can be implemented that lead to bad consequences. We see it so often: people get scared by something, and overreact. I believe, as thinking people, we should be robustly questioning what come across as misleading half-truths contained in this preamble. Before signing up to such a treaty, it should be incumbent on signatories to ensure that the people they represent actually believe in the justifications stated in such a preamble, otherwise there is bound to be trouble.

First, where is the actual evidence that “effective enforcement of intellectual property rights is critical to sustaining economic growth across all industries and globally”? At very least, such a treaty should refer to the literature. I don’t know it, but who does?

So, knowing essentially nothing about the literature, I plunge in via a Google search for “intellectual property” and “economic growth”. One really can’t expect the WIPO literature to be unbiased. And many other academic articles are, of course, hidden behind paywalls, benefiting, … er … the copyright holders … who are only rarely the authors, and much more often the vast wealthy empires of publishing. But then I found one paper on an open website. It is: “International trade, economic growth and intellectual property rights: A panel data study of developed and developing countries” by Patricia Higino Schneider, published in the Journal of Development Economics 78 (2005) 529 – 547. Part of the conclusion is very interesting.

The results regarding intellectual property protection are interesting. They suggest that IPRs have a stronger impact on domestic innovation for developed countries and might even negatively impact innovation in developing countries. These results may be indicative of the fact that most innovation in developing countries may actually be imitation or adaptive in nature. Therefore, providing stronger IPRs protects foreign firms at the expense of local firms.

Even though this is followed by the relatively tame

The policy implication here is not to discourage intellectual property protection in developing countries, but to generate incentives for its strengthening. Innovative activities and IPRs are complementary in nature; therefore, developed countries would benefit by supporting R&D activities in developing countries.

At least, the end of the conclusion

highlights the importance of conducting studies that are inclusive of both developed and developing countries and suggests that pooling together developed and developing countries might lead to misleading conclusions, and consequently to inadequate policy recommendations

And this is from just one article I managed to find. Is that not enough to start casting doubt on the bland assurance of what ACTA “notes”?

That’s only the first paragraph of ACTA.

The second paragraph expresses concern about “significant financial losses for right holders” without questioning the ethics or desirability of this. So what if a right holder is making itself rich exploiting its IP ownership while withholding free useful information and cheap and effective solutions to people who need them? No talk of that, but rather of the cases of “organized crime”. That might remind people of the “war on drugs”, but hasn’t even that fallen into disrepute recently?

And these two paragraphs form the sum total of the explicit justification for ACTA. It strikes me as scandalous that such far-reaching and worrying political conclusions can be based on such a contentious basis.

Yes, of course we don’t want criminals making dangerous counterfeit goods. Let’s encourage our governments to fight that kind of thing that we all agree on, without creating highly problematic treaties and laws based on highly dubious premises.