TY - JOUR

T1 - On FRAND as a Means of Information Access

AU - Kokoulina, Olga

PY - 2024

Y1 - 2024

N2 - FRAND (fair, reasonable and non-discriminatory) is a highly debated acronym that has been scrutinised, expounded and tested in scholarly works, courtrooms, and policy discussions. Initially employed as a remedy means and access tool in sector-specific and standards-setting contexts, FRAND has recently made its way into the emerging EU data governance regime. Given this new position, it is appropriate to examine FRAND critically as a universal access mechanism of the information law domain at large.Drawing on a narrative of FRAND in SEP licensing, this article reflects on the innate capacity of FRAND to act as a flexible governance instrument. Examining regulatory forces and patterns guiding the interpretation of FRAND, the article presents the interplay of self-governance, national and EU layers of regulation. As shown, the determination of FRAND is firmly grounded on institutional and procedural norms, both in a standardisation context and beyond. The analysis highlights the fact that such a regulatory approach has costs and opportunities. To harness the flexibility of FRAND as a universal information access tool, it is essential to gain more clarity as to the content and goals of FRAND-enabled transactions. It is also critical to ensure that the efficiency of such a regulatory approach does not come at the cost of compromising on the protection afforded by EU fundamental rights and freedoms.

AB - FRAND (fair, reasonable and non-discriminatory) is a highly debated acronym that has been scrutinised, expounded and tested in scholarly works, courtrooms, and policy discussions. Initially employed as a remedy means and access tool in sector-specific and standards-setting contexts, FRAND has recently made its way into the emerging EU data governance regime. Given this new position, it is appropriate to examine FRAND critically as a universal access mechanism of the information law domain at large.Drawing on a narrative of FRAND in SEP licensing, this article reflects on the innate capacity of FRAND to act as a flexible governance instrument. Examining regulatory forces and patterns guiding the interpretation of FRAND, the article presents the interplay of self-governance, national and EU layers of regulation. As shown, the determination of FRAND is firmly grounded on institutional and procedural norms, both in a standardisation context and beyond. The analysis highlights the fact that such a regulatory approach has costs and opportunities. To harness the flexibility of FRAND as a universal information access tool, it is essential to gain more clarity as to the content and goals of FRAND-enabled transactions. It is also critical to ensure that the efficiency of such a regulatory approach does not come at the cost of compromising on the protection afforded by EU fundamental rights and freedoms.

U2 - 10.1093/grurint/ikae026

DO - 10.1093/grurint/ikae026

M3 - Journal article

VL - 73

SP - 393

EP - 405

JO - GRUR International

JF - GRUR International

SN - 2632-8623

IS - 5

ER -