This is Part 5 in a series of articles in which contributor Stacy Baird presents and in-depth analysis of the role of governments in standards setting initiatives which is released on a bi-weekly basis. For previous instalments see here: Part 3, Part 4 – Editor

PART 5 – Not Hot, nor Cold, but Just Right… (or “Not Formal, Not Informal, but Drawing on the Best of What Came Before”): Consortia

I have been discussing the sophistication of the IT industry in setting standards as evidenced by the industry’s long history and considerable use of formal (SDO) and informal means such as patent pools. In between SDOs and patent pools resides a more recent concept commonly used by the IT industry, a truly flexible approach to standards development – where the relevant industries or businesses develop and support a standard by mutual agreement through a consortium.

Consortia are organizations formed by companies interested in developing a standard to serve their mutual interests. Typically, because these organizations are formed to meet the specific standards needs of the interested companies, the process can be more efficient and therfore more compatable with the pace of innovation in IT. Consortia come in many flavors, from very informal, to quite formal, and certainly some are more successful than others, but they have similar processes and characteristics as a traditional standards development organization, with the benefit of built-in efficiencies. Consortia-developed IT standards abound including video standards such as VGA and SXGA analog computer display standards(VESA); digital transmission standards such as digital subscriber line, or DSL (DSL Forum); Internet-related developer standards such as HTML (W3C), XML (W3C and OASIS), SOAP (W3C) and Synchronized Multimedia Integration Language (SMIL, W3C); OpenCable Application Platform (or OCAP, a set of standards that will facilitate interactive video interoperability, i.e., a unified developers platform for set-top boxes, consumer electronics devices, game devices, digital video recorders, portable devices, PCs, etc.), the Advanced Access Content System Licensing Administrator (AACS LA) digital rights management for high-definition videodisk standards (adopted into both BluRay and the failed HD-DVD formats), Universal Plug-N-Play developed by Microsoft and numerous third-party equipment manufacturers (UPnP Forum) ostensibly to simplify and automate an end-user’s installation of hardware on a computer that uses the Windows operating system. Although consortia can be less transparent or open in their processes than traditional standards development organization, they have their important place in the standards arena and the results of their work is widely accepted.

Government has endorsed consortia, informal multi-company standards development activities (including those that implicate “patent pools”), and even single-enterprise standards-setting activities as on the same footing as formal standards-setting organizations in meeting federal government requirements for “voluntary consensus standards.” The National Technology Transfer and Advancement Act (NTTAA) sets out the mandate that federal government agencies use commercially developed “voluntary consensus standards” unless doing so would be against the law or otherwise impractical. An important document in the U.S. in this arena, the revised Office of Management and Budget Circular A-119, which provides detailed guidance to federal agencies regarding this statutory mandate, is clear that standards developed by private sector consortia would meet the meaning of voluntary consensus standards for the purposes of the government requirements of Circular A-119. In 2005, the National Institute of Science and Technology (NIST), the government agency responsible for standards in the U.S., reinforced this reading of the law:

In reporting the full measure of their efforts at minimizing reliance on government-unique standards, Federal agencies have historically reported the use of private sector standards including other than voluntary consensus standards. The OMB Circular classifies these other private sector standards as non-consensus standards, industry standards, company standards, or de facto standards. The Circular also states that it does not establish a preference among standards developed in the private sector. Consequently, the information contained in this report, as received from the agencies, includes the use of standards by, and participation in standards development activities of, both consensus and non-consensus standards developing organizations. (NIST, EIGHTH ANNUAL REPORT ON FEDERAL AGENCY USE OF VOLUNTARY CONSENSUS STANDARDS AND CONFORMITY ASSESSMENT 2 (2005)).

Formal standards bodies such as ANSI and ISO acknowledge the importance of the use of the full range of standards-setting forums, as well. While ANSI generally espouses the consensus model of standards development, it has no objections to the use of proprietary technologies within standards that have undergone canvassing. Moreover, ANSI will accredit standards that have been developed initially on a proprietary basis. Indeed, many consortia developed standards ultimately go through the formal standards adoption process and become national and international standards.
It is clear from the long history of SDOs and patent pooling — and the innovation of consortia bridging the consensus process of SDOs with the efficiencies of patent pools – the industries that are involved in IT standards setting have created a remarkable ecosystem in which to develop standards.