22 October 2015

More competition law-FRANDly IPR policies: A solution to SSOs’ problems of self-governance?

Kokoulina, O. and Minssen, T. in Riis, T. (ed.) User Generated Law- Re-constructing Intellectual Property Law in the Knowledge Society. Edward Elgar Publishing, Incorporated (2015).

Chief economists of the EU Commission and the FTC have recently made some proposals for possible reforms to the IPR policies of standard setting organizations (SSOs). In their recommendations, they place a great emphasis on the adverse impact of opportunistic behaviour within standardization, as such behaviour can harm consumers and threaten the incentive to innovate. They also assert that SSOs have the responsibility to ensure that this risk is mitigated through an IPR policy that properly addresses this issue. In that context it has also been claimed that many existing SSO policies are not strong or clear enough to achieve this goal.

In conjunction with this, one cannot help reflecting on the meaning and effect of the message conveyed to SSOs. This article aims to provide further clarification as to the proper role of antitrust law in shaping and informing originally user-generated internal IP policies of SSOs, i.e. to what extent they should be governed and constrained by the practice and recommendations of competition authorities.

To this end, we start by examining the standard setting landscape in the ICT sector in section 1. Section 2 presents some challenges associated with the IPRs and standards. Section 3 provides a brief overview of the cases initiated by the competition authorities of the EU and US in the context of standardization. This will serve as the basis for section 4, in which we examine the extent to which the outcomes of antitrust investigations should be incorporated into SSO practice. We summarize our conclusions in section 5.