Copyright Licenses Are Key When Including Software in Standards
Open source software and open standards have many similarities but the legal frameworks under which each are created have real and important differences. Nonetheless there is an increasing desire to combine the benefits of both open source and standards in the development of new interoperable software-based technologies. The good news is that the differences in legal frameworks can be reconciled by giving care to the rules under which standards are developed. One key area of attention to achieve this end involves the copyright rules under which open source elements of standards are made available.
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The mere development and use of software by SSOs in these ways has for the most part not given rise to conflicts with traditional SSO patent policies that permit participants to license their essential patent claims (i.e., those patent claims that would be infringed by implementing the standard), on fair, reasonable and non-discriminatory (FRAND) terms. The intellectual property rights (IPR) policies of most (but not all) SSOs provide that FRAND terms may include reasonable royalties or other reasonable license fees. SSOs with such patent policies are referred to in this article as FRAND SSOs.