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EU Standards Must Be Freely Available

In 2019, two organisations—Public.Resource.org of Sebastopol, California, and the Right to Know GLC of Dublin—brought suit against the European Commission for violating the fundamental rights of citizens to access the standards they are required by law to know, and attempting to protect intellectual property by copyright which lacked originality because it was, inter alia, provided by public governmental and industry sources. On appeal, European Court of Justice Advocate General Medina on 22 June 2023 agreed with a landmark memorandum opinion.

The Court press release stated, “European Harmonised Technical Standards must be freely available without charge because of their particular legal nature as acts that form part of EU law,” and “a Commission decision refusing access to the requested harmonised technical standards…should be annulled.”

This is a milestone development that was long coming and a major victory for European consumers, SMEs and the ICT industry. It is also consonant with a 2019 decision of the U.S. Supreme Court on similar issues. Not only does this landmark opinion remove the paywalls, but it should also significantly improve the transparency and openness of standards-making processes and enable competitiveness among standards bodies—resulting in better quality, market/industry-driven standards.

The leader driving this paradigm change is Carl Malamud—who approached the ITU Secretary-General in 1991 to undertake the Bruno Project to make all the ITU’s standards freely available online in three weeks which was readily accomplished. The initiative became the subject of a book and innumerable similar endeavours. Fifteen years later, the nations of the world constituting ITU Members directed that its standards be made freely available officially—which set the norm for intergovernmental standards organisations.

Critically important and timely for the EU

Several weeks ago, in May, the European Parliament published a resolution on a EU standardisation strategy. The strategy seeks to bolster the safety of its citizens and encourage common standards that engage a greater diversity of participants and further “Europe’s technological sovereignty, ability to reduce dependencies and protection of EU values [that] will rely on [its] ability to be a global standard-setter” per its Commissioner for the Internal Market.

The EU standardisation strategy and objectives are critically dependent not only on making standards freely available, but also on observing its own policies on competition, openness, and transparency. Over the decades in the ICT industry and marketplace, it is abundantly clear that freely available standards combined with robust competition among all the diverse standards bodies in the ecosystem—including consortiums—have brought about enormous evolution and growth in the state-of-the-art and marketplaces worldwide.

Unfortunately, almost all of the rapidly expanding ensemble of new EU legislation relating to cybersecurity, infrastructure protection, supply chain management, and artificial intelligence are giving rise to highly insular EU standards activities that are anything but open and transparent—with enormous paywalls. As Advocate General Medina notes, the rights of EU citizens are being impaired, and their funded public intellectual property taken to protect the revenue streams of a handful of standards bodies via EU monopoly grants. That is decidedly not a winning standardisation strategy—in addition to being unlawful under Europe’s own norms and values.

The EU and its Members now have the opportunity to rectify these matters by complying with AG Medina’s memorandum opinion on standards access and further enabling competitive industry, consumer, and market-driven standards activities and practices to ensue.

By Anthony Rutkowski, Principal, Netmagic Associates LLC

The author is a leader in many international cybersecurity bodies developing global standards and legal norms over many years.

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