Pushed by the development of digitalization and internetization, the International Organization for Standardization (ISO) and the International Electrotechnical Commission (IEC) have published new policies for copyright protection of standards in order to cope with the challenges of the new situation.
Beginning in 1990s, ISO and IEC began to jointly release Common IEC and ISO Copyright, Text Exploitation Rights and Sales Policies. Later on, they began to formulate different policies for protection of standards copyright (PPSC), including ISO Policy for the Protection of ISO's Intellectual Property, Policies and Procedures for Copyright, Copyright Exploitation Rights and Sales of ISO Publications (ISO POCOSA) and IEC Sales Policy. Such PPSC clearly defines the rights of the member states and their obligations to ISO/IEC standards copyright protection. ISO/IEC PPSC is a new challenge for China. Therefore, it is necessary to have an analysis and research of ISO/ IEC PPSC.
I. ISO Policies for Standards Copyright Protection
As early as in 1951, ISO made an announcement that it had the copyright to its first Suggestion when it was worked out and published. Later on, ISO have reiterated this claim by developing a series of policies to enhance standards copyright protection (SCP).
ISO and IEC jointly worked out ISO/IEC/ POCOSA Common IEC and ISO Copyright, Text Exploitation Rights and Sales Policies (ISO/IEC POCOSA) in 1993, a common commercial policy for them. Subsequently, ISO has made four amendments to it. The commercial policy was renamed as Policies and Procedures for Copyright, Copyright Exploitation Rights and Sales of ISO Publications (ISO POCOSA) because of IEC's absence in the revision in 1999. The reformulation in 2000 mainly dealt with the issue of royalties. A significant revision was held in 2005, which made a combination of core documents and accessories in order to attach equal importance to ISO POCOSA's regularity and flexibility to meet the challenge of IT's application in standards formulation, amendment and dissemination. The 2007 amendments are aimed at Annex 7 and Annex 9, in response to changes in the new situation.
In 1996, ISO issued Guidelines and Policies for the Protection of ISO's Intellectual Property, setting up a basis for the protection of ISO standards in paper and electronic version. In 1997, ISO released Recommendations on the Distribution of ISO Documents via Internet and Other Computer Networks. At the end of 2007, ISO published ISO Policy for the Protection of ISO's Intellectual Property, substituting Guidelines and Policies for the Protection of ISO's Intellectual Property issued in 1996 and repealing Recommendations on the Distribution of ISO Documents via Internet and Other Computer Networks.
After nearly 20 years of development, ISO has developed a set of policy systems, with ISO Policy for the Protection of ISO's Intellectual Property and ISO POCOSA as its main body, in order to protect the copyright of ISO standards, which has played an important role in such protection.
1. ISO Policy for the Protection of ISO's Intellectual Property
Released in 2007, ISO Policy for the Protection of ISO's Intellectual Property (ISO PPIP) is a guideline to copyright protection for ISO standards. It intends to make a definition of the works protected by copyright, stipulates the obligations of its members in IP protection, and set up framework for the implementation of ISO POCOSA.
ISO PPIP has nine articles in total, through which ISO defines the scope of protection of standards publications, sets the standard for and scope of copyright protection, puts forward five guiding principles for SCP, provides standards at different levels with different requirements for SCP, requires all member states to strengthen SCP popularization. In addition, ISO PPIP formulates specific protective measures for electronic text, requires all member states to take digital and other technologic measures to strengthen copyright protection of ISO's standards, publications and electronic documents. ISO PPIP also includes articles related to the supervision and limitation of ISO standards, and relevant provisions related to visitors of draft standards for the first time.
It is worth mentioning in particular that ISO PPIP tells visitors who have access to ISO standards and drafts that their behavior is subject to supervision. ISO standards can only be reached by consensus of the stakeholders before an international agreement. ISO standard distributes the electronic version of draft standards round all relevant parties to promote relevant national agencies to get involved in the formulation of standards. Those who participate in the enactment of standards may have access to ISO electronic documents and submit comments.
However, ISO PPIP also stipulates the supervision on these persons participating in drafting and commenting on such standards in order to warn them that their use of information is limited to the scope required by ISO standards development process and they shall not disseminate or distribute such standards outside ISO during such period. ISO PPIP intends to tell such persons that they are required to protect the copyright of ISO standards.
As guidance for ISO SCP, ISO PPIP has played an irreplaceable role in guiding ISO SCP system at the framework level.
2. Policies and Procedures for Copyright, Copyright Exploitation Rights and Sales of ISO Publications (ISO POCOSA)
As mentioned earlier, ISO POCOSA 2005 has formed a framework and structure with a core file as the center, nine annexes as subsidiary, and established a business policy on the basis of a combination of regularity and flexibility, including protection provisions, means of exploitation, sale policy, procedures and others after four amendments. Special attention should be paid to three aspects in ISO POCOSA.
Firstly, ISO POCOSA 2005 stresses that the copyright of ISO publications belongs to ISO, that "all the right to exploit all ISO publications shall be entrusted to ISO. On every piece of ISO publication, there shall be an internationally recognized copyright symbol and data on appropriate place." The policy also requires member states to strengthen their SCP. "Each Member of ISO shall take actions under its national law to protect the text or other content of ISO publications from unlawful copying." This provision echoes ISO PPIP, reflecting ISO's stress on SCP and the requirement of its member states.
Secondly, ISO POCOSA 2005 provides that its member states shall pay royalties in accordance with the relevant provisions when doing commercial activities. ISO POCOSA 2005 allows member states to sell ISO standards to non-member states to make sure its member states shall have a stable financial income, provided that member states pay royalties to ISOCS when they do copying, selling, translating ISO publications and other commercial exploitation. Royalty is not only the focus of ISO policy for the sale of standards, but the key of ISO SCP policy. Therefore, ISO sets up different royalties and ratios for member states and the third party involved in the exploitation of ISO publications under different circumstances.
Thirdly, ISO POCOSA 2005 stipulates technical measures for the protection of electronic ISO publications. It puts forward a technical plan under the name of digital rights management system (DRM) to protect the copyright of digital products. DRM is a kind of technology tools for IP protection and management, which can be used in the process of manufacture, dissemination, sale and exploitation of digital products. DRM is a kind of very effective technical measures for the protection of digital products at international panel. The requirement of ISO POCOSA 2005 to member states shall effectively promote the introduction of DRM across the world for a further copyright protection of digital products and a more standardized management in the field of digital products standards.
In addition, ISO POCOSA also fixes the rules for the calculation of exploiting electronic ISO standards within a company and the requirement for reports submitted by member states to ISOCS on their selling and adoption of ISO standards. The two parts were amended in 2007 in a timely manner, reflecting ISO PPIP's flexibility and timeliness.
In summary, ISO POCOSA 2005 has the following characteristics: i. Flexibility. Nine annexes stipulate specific rules around the core paper and are revised according to actual situation in a timely manner. Under the new changes in the situation in 2007, ISO Council made an adjustment and revision to Annex 7 and Annex 9 to ISO POCOSA 2005; ii. Comprehensiveness and clarity. ISO POCOSA 2005 has clear stipulation on the obligations of member states to ISO in terms of ISO copyright protection, copyright exploitation right, distribution and selling of ISO publications from A to Z. As an important component of ISO PPSC, ISO POCOSA 2005 has played an irreplaceable role.
The system of ISO PPSC has come into being with ISO PPIP and ISO POCOSA 2005 as its core. PPSC has become one of ISO's basic principles, and was affirmed in ISO Code of Ethics of 2004, which fully reflects ISO's stress on SCP.
II. IEC's Policies for the Protection of Standards Copyright (PPSC)
Just like ISO, IEC has attached importance to the copyright protection of IEC standards. It released IEC Sales Policy in 2004, a completion on the study and summarization of 1993-versioned ISOIEC POCOS, intending to provide a comprehensive copyright protection for all publications, including paper and electronic versions. The basic objective of its copyright protection policy is that "IEC encourage member states to use IEC standards at home or regional level to the maximum extent" in order to promote the realization of IEC goals. IEC Sales Policy includes a body, 10 accessories and a summary table of IEC sales policy.
Similar to that of ISO, IEC stresses its copyright to its publications, values the role of IECCO and the National Committee (NC) in copyright protection, and make clear definition and difference between and among "internal use", used as "national standards" and "commercial use" related to IEC publications.
By "internal use" it refers to the use of IEC member states or experts in the process of formulating or amending standards, or the use of national museums of member states for collection.
Where there is an internal use, it is permitted to reproduce and distribute all or part of IEC publications, to free translate them into the native language(s) of NC when necessary, and to reproduce all or part of IEC directory to the national one.
IEC encourages the introduction of IEC standards as national or regional standards. Where there is an introduction of national standards or regional standards, it is allowed to include all or part of the texts of IEC standards, and to translate IEC standards into the native language(s) without paying royalties. However, IEC requires that the State concerned shall submit quarterly sales report in detail to IECCO if there is a sale of national standards with introduction of IEC standards.
"Commercial use" is the key of IEC copyright management, a central embodiment of IEC copyright policy, and most of it is the same as that of ISO. However, there are two differences between ISO and IEC. The first is the different publications under copyright protection. The protected publications under IEC policy including IEC standards, the final draft of IEC standards, other deliverable works with a price fixed in advance, and database format files (not included in ISO). The second is the different royalties: 40% of the list price (30% required by ISO) for the reproduction of IEC standards and 30% of the list price (30% of net income required by ISO) for the reproduction of IEC draft standards.
The 10 annexes to IEC Sales Policy expounds on the nine provisions in the body, making the policy more complete and comprehensive.
Generally speaking, IEC Sales Policy intends to ensure that NC of member states, when amending their standards, will introduce IEC's international standards to their national ones; that IEC publications will be distributed in the best way through the stipulation of NC's rights and obligations; that a reasonable financial revenue will be ensured under IEC system; and that there will be a guarantee for IEC's copyright to its standards.
III. The New Progress in ISO/IEC Policies for the Protection of Standards Copyright (PPSC)
ISO & IEC have met new challenges from the emergence of wikis, blogs and other new media with the development of network and information. ISO has begun to amend ISO PPIP, including:
1. An increase of the legal basis for IPR protection. After making an analysis of need for the protection of ISO publications from a legal point of view, the draft amendment points out that the Berne Convention, WIPO Copyright Policy and domestic copyright laws around the world can be used for the protection of ISO publications. This indicates that the ISO standards and publications shall be recognized by more and more countries as the object of copyright protection, and that the trend that some countries have made specific provisions in domestic law shall be an international suit to follow.
2. A clear copyright where there is an introduction of ISO standards into a member state. According to the revision of ISO PPIP, a member state may open ISO standards to the public under certain special circumstances, for example, where such opening will not constitute a threat to the interest of other ISO member states. It is clearly provided in the draft that ISO standards shall belong to ISO even if a member state has adopted them as national standards. ISO standards adopted by member states can not be available to any third party as a whole or in part without charge unless there is a specific authorization from ISO council. This further enhances the copyright protection of ISO standards.
3. A registration program to prevent the draft standards from being automatically linked and obtained through a simple search engine. With the help of such a program, the draft standards can be read only for public comment and the entirety of the draft standards can not be obtained through download or other means.
In addition, ISO PPIP also requires that a water mark must be printed on each page of standards' electronic version whether they are ISO standards or national standards with the introduction of ISO standards. ISOCS provide ISO member states with a kind of free software to print watermark at ISOSTD service department.
These contents in the draft are still under discussion and it will take sometime to have a look at its final edition. However, we can be informed that: a. SCP has a basis from the point of view of international law; b. International standards adopted by ISO member states shall become the objects of protection; c. More diversified means shall be taken by ISO to protect its standards and publications.
China should strengthen its tracking and research on the development of ISO/IEC PPSC, keeping abreast of the latest developments in this regard. ISO's new PPSC will constitute a new challenge for China. As a member of ISO & IEC, we should follow ISO/IEC PPSC, fulfill China's obligations as a member state, and safeguard China's legitimate rights and interests to the utmost.
At the same time, China should strengthen the popularization and dissemination of PPSC, improve people's SCP awareness, in order to make everyone fully understand that standards are under the protection of China's Copyright Law , and an authorization must be got before its being translated, reproduced, and selling.
The Standardization Administration of the People's Republic of China (SAC) issued Regulations on the Protection and Administration of the Copyright of ISO & IEC Standards Publications (for trial) in 2007, which provides that ISO & IEC standards publications shall be protected by China's law, and makes specific provisions related to the distribution, exploitation, reproduction, sale, translation of such publications and other matters. It is the legal basis for the protection of such publications. SAC and other relevant agencies shall abide by and implement it in order to protect ISO/IEC copyright in publications.
(Translated by Yuan Renhui)
京公网安备 11010802020770号