An Exceptio Standardis: Do We Need an IP Exemption for Standards?

Kamiel J. Koelman, Bousie Advocaten

10/14/2008
(Original Publish Date: 8/30/2006)

Due to network effects, propriety rights in standards, based on either copyright or patent law, may have undesirable consequences. They may result in undue monopolies and undermine innovation. Many possible solutions have been explored for dealing with the disadvantages that ownership of standards may have. This contribution investigates an approach that has not yet been considered: the introduction of an exemption in IP law that would allow, against remuneration, the usage of IP protected subject matter if it is part of a standard. First, the extent to which existing European law can deal with the drawbacks of proprietary standards is studied. Mechanisms that exist in copyright and patent law, as well as in antitrust law are discussed. Next, several ways of addressing the issue within IP law are explored. It is concluded that a compulsory licensing scheme as regards standards could be desirable. It may ensure that the incentive that intellectual property rights are supposed to provide is not excessively undermined, while it could at the same time have as a result that neither competition nor innovation are unduly hindered, as they may be under the current regime.