Lawyers Rub Hands at Mobile IPR
By Steve Wallage, Tue Apr 16 00:00:00 GMT 2002

Mobile IPR could be a nightmare for the industry unless some co-operation and planning happens.

Intellectual Property Rights (IPR) used to be a far simpler subject. Patents, trademarks and copyrights were granted for one technology which was applicable in one channel. The patents were made available to others on 'fair, reasonable and non-discriminatory' terms. This still kept the lawyers very busy, and the mobile industry has had its fair share of IPR disputes – for example, over key GSM and WAP patents. In fact, the 3G Patent Platform website goes as far as describing 2G licensing as "unfair, counter-competitive, costly and time-consuming."

However, IPR is suddenly going to become a lot more complex for the mobile industry. This is for three main reasons; the move to 3G and all the associated patents around the technology, the massive increase in the complexity of the market as the industry moves to a new mobile data value chain, and the convergence of the mobile industry with the Internet, IT and media worlds.

The worrying thing is that the mobile industry has concentrated so much of its effort on overcoming license debacles and general economic malaise, that the mobile IPR issue has not received the attention that it deserves. IPR issues will range in scope from technology to content to applications. Confusion and lack of preparation are 'manna' to the ears of the lawyers, but will lead to serious problems for the industry.

Lessons from the Internet

The issues of IPR on the Internet has a lot of resonance for the mobile industry. Some commentators have suggested that the mobile market is far more controlled than the 'Wild West' of the Internet. However, 3G will change this as portals, virtual operators, service providers and applications providers vie for the attention of users who will be able to access thousands of different mobile applications as well as accessing the Internet and corporate Intranets. Juha Pekka Katainen, an attorney-at-law specializing in mobile IPR for Finnish law firm Krogerus & Pirila, views the 'opening' of the mobile market as a further degree of complexity for mobile IPR. Dominant vendors with proprietary technologies, and country markets with two main operators, makes controlling IPR far simpler.

On the technology side, there has been a move for a more open attitude to IPR. The W3C does not prohibit IPR, but its policy discourages IPR in technical standards by requiring that all members disclose their claims to the entire membership during the standards-making process.

On the contents side, Katainen sees mobile IPR issues as similar to those of the Internet, in that, "it is very easy to copy and distribute content, and to do it worldwide." Issues already faced in the Internet world are likely to apply in the mobile world. For example, the EU ruling that ISPs are not responsible for illegal distribution of content but must try and prevent it when alerted, will apply to mobile providers. Similarly, Internet rulings and precedents will apply to mobile domain disputes. Yet even defining the service provider can be difficult when it is a multi-channel solution or content linked from a third party. The lessons from the Internet will be a small help in the larger problem of mobile content and applications IPR.

The 3G patent platform

There have been a number of initiatives to try and tackle some of the IPR issues. The 3G Patent Platform Partnership, with support from vendors, operators and others, announced in June 1999 that it had created a first definition of the problem. The 3G Patent Platform Partnership was defined within the UMTS IPR Working Group.

Since then, the 3G Patent Platform Partnership has had to overcome a number of legal, regulatory and commercial challenges. This has included a three year fight with the US Department of Justice to gain approval. Its remit includes; a licensing platform including the decision on whether a technology is 'essential' to 3G, certification, identifying patent requirements for members, and a global licensing program. It will initially cover all the technologies currently under definition within the ITU IMT-2000 framework. However, it will look to expand its remit to include 3G applications and other relevant licensing issues. It will not organize the collection or distribution of license fees.

Brian Kearsey, Director General of the 3G Patent Platform Partnership, believes that there will be a global launch by June 2002 with the support of key standards groups. He believes that industry support will grow as vendors see the benefits in working together to promote 3G development and growth. He also believes that pressure will come from operators who may insist upon vendors complying with the 3G Patent Platform Partnership.

The 3G Patent Platform Partnership has lofty aims, and it is not surprising that it was dubbed 'mission impossible' when it was started. It has gained strong global support, including commitments from Japan, Korea and China. As its success grows, it is likely to see increased support from companies such as the IT titans, keen to see massive exposure for their IPR.

However, the whole premise does depend on the major vendors 'playing nicely together'. This is less contentious on the clear building blocks of 3G, but is extremely difficult at the higher levels of service and functionality, and for applications.

Other vendors are also promoting groupings to develop standardized offerings. Nokia has taken a global initiative to develop a comprehensive technical architecture for the mobile Internet called the Nokia Mobile Internet Technical Architecture. This is centered on improving the customer experience and is open to all developers, service providers, operators and other industry players.

Mobile content and applications

How can companies protect the IPR of their content or applications in a 3G world? The answer is with great difficulty. An idea has no copyright in law, and protecting the 'look and feel' of an idea is very contentious.

There is also a strong tide in favor of easing access to digital information at the expense of copyright holders. For example, the US Digital Future Coalition are strong supporters of the right to information for, "educators, businesses, libraries, consumers and others." As the Chinese proverb states, 'to steal a book is an elegant offense.'

The whole area remains very messy. It is estimated that around 80% of corporate intellectual property is now held in digital form. Yet, Digital Rights Management (DRM) has not clearly defined the rights associated with Web content, the statement of such rights, and the notification, enforcement, and payment negotiation.

The mobile industry needs to work hard to adapt DRM for mobile content. The W3C is looking at DRM interoperability with a standard rights language that will be content agnostic. Mobile vendors need to be an important part of this debate.

Global Issue

Katainen believes the global issues will be particularly challenging for mobile IPR. For example, he points out that the US and Europe have tended to take a very different view of the scope of patents, with the US far more ready to accept the patenting of software and business methods and processes.

3G will see greater consolidation in the mobile industry but conversely we will see more in the ways of local applications and content.

There are signs of greater co-operation between international licensing and standards bodies, and a greater acceptance of the importance of patents in developing countries. However, this is slow progress and the mobile industry will have to contend with significant regional differences in the approach and enforcement of IPR.

Going forward

Krogerus & Pirila believe they will be very busy in the next couple of years with mobile IPR licensing and distribution issues. The mobile industry needs to work hard to ensure that the lawyers are not kept too busy. Two of the main challenges are to sort out the mobile industry's own position, and to increase involvement and influence across Internet and broader standards and IPR groups.

The mobile industry has a host of different consortia whose role touches upon some of the issues of IPR. Commercial sensitivities ensure that vendors are desperate to push such groupings to their own advantages, or to slow down the speed and scope of decision-making. Longer-term this approach does not make sense, and sorting out key mobile IPR issues is vital to the success of 3G.

Equally important is the wider context. The future of the mobile industry is increasingly tied in with the Internet and media worlds. Vendors and operators need to be clearly represented and influential in such groupings as the IETF and W3C, as well as more specific groups such as SIP. Broader groupings such as the World Intellectual Property Organization (WIPO) can also help to resolve the mobile IPR issues.

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Steve Wallage works and writes for the451. Steve has more than 13 years of experience as a technology analyst specializing in telecommunications.