"International Standards" has long been a buzzword for many people. Though use of the term is very common, finding a common meaning of the term has proven to be difficult. It is undisputed that international standards have played an important role in people's lives. According to a report from the Chinese version of the Wall Street Journal website, on January 4th, 2011, the EU established compulsory unified standards for smart cell phone chargers and USB interfaces. In fact, as early as June 2009, the top 14 smart cell phone manufacturers across the world had already reached an agreement on the standardization of the smart cell phone charger. The list of signatories on the agreement included Apple, Emblaze Mobile, Huawei Technologies, LG Electronics, Motorola, Nippon Electric, Nokia, Qualcomm, Research In Motion, Samsung, Sony Ericsson, TCT Mobile, Texas Instruments and Atmel. In summary, standardization has become increasingly important for businesses against the background of economic globalization.
There may be more than one version of a definition which is referred to as an "International Standard". This is because an "International Standard" is simply a definition that has been adopted by a minimum of two countries. A definition is considered "adopted" the standards when the term is used by two or more countries as technical rules used to comply with or to interpret the terms of a contract. International standards are mainly for exporters to achieve their sale targets at a diversified market, where uniform standards will help reduce costs, improve efficiency, and make international trade more convenient.
There are many ways to set up international standards, which is the same in essentials with setting up national standards while differing in minor points such as a wider coverage. Generally speaking, international standards are developed by experts from a number of countries or cultural backgrounds.
There are two main systems or methods most commonly used to set up international standards, namely, the governmental and non-governmental representative systems. In governmental representative systems, official representatives are designated by their respective countries to act as members of international technical committees on standards to set up such standards according to the principle of "one country, one vote" and safeguard the interests of their countries. The most commonly recognized international organizations that have adopted the governmental system are the International Organization for Standardization (ISO) and the International Electrotechnical Commission (IEC), though they are not the only groups that use this system.
In the non-governmental representative system, individuals or organizational representatives are chosen to serve as members of the international technical committees. They are not designated by the government and their duty is to represent the interests of companies, consumers, universities or government agencies. They act as individuals or organizational members of international technical committees on standards to set up international standards according to the principle of "one person or organization, one vote" and safeguard the interests of respective individuals or organizations. The American Society for Testing and Materials (ASTM) used this system until 2001 .
Since its foundation in 1898, the ASTM has become the oldest and largest non-profit academic organization in terms of standards in the U.S. It originated from the International Association for Testing Materials (IATM), which held its first conference in 1882 in Europe and decided to set up a working committee. The IATM then focused on the solution of experimental methods related to the steel industry and other materials. At its Philadelphia conference, the IATM approved the creation of its American branch and set up its first standard—A1, which remains in effect to this day.
Electronic transmission of information has greatly promoted the development of standard information, and made the standards more intuitive, popular, and adapted to the global market. Electronic transmission of information, including the emerging network technologies and internet, has spawned a variety of new business models. However, the popularity of electronic technology and Internet use has also been followed by new problems related to copyright and infringement. These problems arise mainly from a lack of understanding of copyright; of terms associated with copyright application or related business issues. According to Tom O'Brien, ASTM vice president, "the ASTM will take the lead in placing the solutions to these problems on its agenda as a leading Standards Development Organization (SDO). Our database of more than 12,000 published standards is the most important asset for the ASTM. And combating the long-lasting piracy and infringement will remain a priority on the ASTM's agenda."
China IP: Can you tell us what on earth a standard is?
Tom O'Brien: Standard is the common language used by buyers and sellers in order to promote the circulation of goods and protect the public interest.
Take for example an architectural design. When architects design a building, they will clearly write on the drawings the requisite steel specifications. For example, they may write "ASTM A36", namely, structural steel specifications. This is the simplest and most reasonable way to inform the contractor of the quality of steel needed (composition, strength and quality) to safely complete the design. "ASTM A36" is a standard booklet with four pages, which clearly lays out the requirements for ASTM A36 steel. With standards in mind, architects can easily describe thickness, tensile strength and other characteristics of the steel without a large number of reference books and waste of paper and time. In this way, thousands of such standards can be easily obtained; no communicative difficulties emerge between buyers and sellers. All the efficiency and convenience can be attributed to a common standardized language.
China IP: What about the ASTM's business model?
Tom O'Brien: In the U.S., the ASTM is a nonprofit organization. The ASTM and other SDOs benefit from selling their standards to meet the expenses of business operations and standard formulations. The ASTM hopes to have a stable income source in this regard in order to continuously set up and upgrade the world's "first class" standard products, and sells them across the world at a fair and reasonable price. We strive to earn profit instead of seeking profit. We reinvest our gains in our business operation. We set up the railway standard more than 100 years ago. We have developed a number of oil standards. Now, we are mapping out environmental standards and sustainable development standards.
China IP: Is the ASTM responsible for its standards after they are published? Once a user suffers a loss from his use of the ASTM standards, should the ASTM take responsibility? Is there any precedent in this regard?
Tom O'Brien: So far no ASTM standard has encountered this problem. The U.S. government and many other European governments have adopted many of our standards, some of which come from governmental inclusion of our standards creation process. The government then enforces those standards. If citizens or users within that jurisdiction complain, it will be the government who has to deal with these issues. Only the government, not the ASTM, has the authority to enforce the standard. If there are deficiencies related to ASTM standards, we will quickly correct them. If there is no governmental requirement, we are not responsible if a party voluntarily chooses to market its products with ASTM standards. If you choose to use them, ASTM will give you guidance on how to comply with the standards we have defined. However, the decision was yours. The ASTM has never told you that you must use them. We only put forward standards. Whether the application of our standards is compulsory or optional is decided by government.
China IP: Who is responsible for writing ASTM standards? Could you describe the cooperative relationship between those who write the standards and the ASTM? How do you deal with copyright and other issues?
Tom O'Brien: The ASTM has over 30,000 members who participate in more than 140 technical committees. Each technical committee has respective experts, covering metals, energy, environment, aerospace, construction, consumer goods and other fields. Each committee may be further divided into more sub-committees, whose technical experts shall do the writing. Then it shall be submitted to the experts from more than 130 technical teams for deliberation and consideration, and some suggestions may be added to the standard. Therefore, it should be said that all of ASTM members have an opportunity to discuss every ASTM standard. The copyright of every ASTM standard is owned by its institutions. The ASTM signs an agreement with each member which stipulates that everything an individual does as a member of the ASTM belongs to the ASTM. It means that writers transfer all rights related to the standard to the ASTM. Thus, the ASTM has copyrights to every line of the standard. All members are adjunct experts who volunteer to participate in standard formulation and provide the ASTM with free services in our standards. In return they are granted access to the standards free of charge.
There is also the issue of prestige. For example, when Apple, IBM, Boeing and other companies suggest that the ASTM develop a specific standard, a number of technical departments will be convened to create and define the common standards. In this case experts want to be involved and they want their technological input to be recognized. The experts seek to contribute to the development of the relevant standards in order to establish themselves as an authority in the field.
China IP: Where do ASTM experts from? Are they all from the United States or are they chosen from around the world?
Tom O'Brien: The ASTM intends to be a leading international expert organization. Currently, 65% to 70% of the members are from North America, including Mexico, and the United States, Canada; the other 30% to 35% of the members are from other countries and regions worldwide. Most ASTM meetings have previously been held in the U.S.. The distance may make it inconvenient for Chinese experts to attend the meeting. In recent years, we have begun holding meetings in other countries. We can hold distance meetings through Internet communications and other technological means. Therefore, our organization will be more international in the future.
China IP: Are ASTM standards universal or regional?
Tom O'Brien: ASTM standards are universal, but they may make adjustments according to regional differences. The ASTM empowers each country to amend its standards in accordance with local conditions where necessary.
China IP: What does the ASTM think of China's market after its accession? Is it different from other markets in the eyes of the ASTM?
Tom O'Brien: ASTM standards had been widely used in China before its adoption in to China. However, there is much room for the ASTM to expand business so that our standards will be available to more Chinese. China is good in terms of providing a broad market that may be interested in adopting ASTM standards. Time has witnessed a rapid development of China's industry with increasingly abundant, more diversified and globalized products made in China. These manufacturers in China may choose to utilize our standards in order to make it possible to export to markets that require that imported products conform to ASTM standards. Therefore, there is a huge potential for China's market.
Just like other countries, there is piracy in China while exploiting ASTM standards. The ratio between legal and illegal copies is 1:1. Piracy has become more and more serious with new technological development. We have found some websites selling illegal ASTM standards in China after a very bad translation into Chinese. The problem is that the translations may be distorted or missing some of technological contents in the standards. It is, in fact, very dangerous for users. This same situation can be found in Brazil, Russia, and Iran. We shall be very happy to translate ASTM standards from English into targeted languages when required. If not required, we shall not do so. We have nearly 13,000 standards at present. Therefore, it is very expensive to translate all ASTM standards into Chinese or other languages.
China IP: Do you think the piracy of standards is serious in China? Has the ASTM any solution?
Tom O'Brien: A-ha! It is safe to say that China has the highest percentage of illegal copies. Can we say it is all bad? No. it is actually a double-edged sword. It cuts the wrong way in that when there is piracy we lose sales; the illegal copies deprive us of the revenue we need to carry out our mission of creating international standards. However, it cuts in the right direction because the demand for safety standards, even pirated ones, is a good sign. The piracy shows that more and more people are saying "yes" to safety and are interested in adopting our standards. We hold a long term view and will always attach great importance to China's market.
We have begun to directly contact those providing pirated material telling them they must cease infringing. We will continue to warn offenders that we will take measures against infringement if piracy continues. In addition, we have our own team of lawyers collecting evidence and taking other legal measures. Furthermore, we may submit our case to China's law enforcement authorities and seek their intervention, investigation and evidence collection. Websites or computers systems found in illegal possession of ASTM standards should be ordered to be shut down, remove download links and other legal measures and remedies may be taken as well. Of course, the most desirable approach would be to promote education and flexible methods to make legal possession of the standards available instead of focusing on punitive measures to address infringement. We will make more efforts in the future to improve copyright protection in China.
China IP: People are not familiar with copyright protection of standards. Would you please explain it in detail?
Tom O'Brien: Copyright law protects each standard after it is published. For each standard, no one other than copyright owners have the right to possess it. No one is permitted to change any information in the standard without prior written permission. For example, even if I legally have paid for access to the standard for cup manufacturing, I am considered a copyright licensee. Even though I am in legal possession of the standard, it is protected under copyright law and I have no right to change its contents without ASTM permission. Many experts invested a great deal of time and continuous efforts to work out every ASTM standard. ASTM, as the copyright owner of all ASTM standards, testing methods and published information products, the reserves the right to set prices, work out printing and other procedures regarding use, establish business models, select business partners and sales channels at its sole discretion.
China IP: What are the similarities and differences between China and international organizations in terms of standards formulation?
Tom O'Brien: All of China's standards come from above, whereas American ones come from below, in the market. In America, standards are worked out privately by teams of experts for the benefit of persons in need of such standards. They are not decided by the government. We have many technical experts from various countries involved in standards formulation from the initial stage to final product. They collaborate together to develop the most mature technological standards possible.
China IP: China's standards are worked out by the State and are free for a certain period of time. What's your opinion on this matter?
Tom O'Brien: There is no free standard. China's standards need to be protected by copyright law and users need to pay for them. Government may pay for you to buy a standard, and then charge you. Or you buy standards by yourself at you own expense. For a long time, the ASTM has established a practice that it is the user, not the manufacturer, who ultimately shall pay for standards. The fee is from 20 to 25 U.S. dollar per standard, which is not expensive in comparison to the huge yields of profits which can be made from compliance with the standards. For less than 100 U.S. dollars you can get the best technology the market has to offer. It is worth the price.
China IP: Did the ASTM encounter any infringement? Does it have effective means to safeguard copyrights? Has the ASTM ever called for amending the law in order to get legal support?
Tom O'Brien: There are three kinds of infringement. The first kind is taking place on the Internet. Many people think that everything on the Internet belongs to the public and may be used by any person at will without the permission of copyright owner. Of course, it is wrong. The second class is the download of ASTM standards from share sites. Such downloaders think that it is permitted. However, the ASTM does not endorse these sites, or authorize the sharing of files, whether they pass through or reside on the links provided by these sites. One must directly buy ASTM standards from the ASTM website, its authorized distributors or business partners (including purchasing costs). No ASTM standard is allowed to release, circulate, download, and share standards. The last kind of infringement is unauthorized translation and sharing. Simply put, the translation of an ASTM document is a kind of reproduction with a language different from the source language. The ASTM will provide clients and members with corresponding solution when translations of ASTM standards and its copies are required. The use of such documents shall have official authorization and permission.
We have been looking for ways to avoid infringement. Now, we will take the initiative to come to you if we find you or your site is infringing upon our rights. We employ local lawyers and investigators. We will ask the infringers to cease their infringement and explain their actions. Most people will stop infringement. If not, we shall look for more effective measures.
It is very difficult to amend the law because of different legal conditions at different countries. For example, German Copyright Law can be adjusted because it is a kind of common law instead of fundamental law, whereas it is very difficult to be amended because copyright law is part of the Federal Constitution in America. We will cooperate with other international standardization organizations to discuss whether a policy of copyright law amendment should be followed.
China IP: What's your plan for the ASTM's development in China?
Tom O'Brien: I am in charge of IP work without involvement in business. However, I think the ASTM will pay more attention and attach more importance to the Chinese market in the future. I believe problems encountered by China will slowly ease in the coming years with the improvement of people's awareness of copyright protection. What's more, China's IP protection is not the worst in the world.
(Translated by Yuan Renhui)
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