Should You Pay to See the Law You Must Obey?

30 January 2014 IP Litigation Current Blog

Earlier this month, the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet resumed hearings on copyright reform. One of the three topics discussed at the January 14, 2014 hearing was whether model codes and technical standards developed by private standards developing organizations (“SDOs”) and subsequently enacted into federal, state or municipal laws should be protected by copyright or, instead, be freely available to the public.

Since the Supreme Court’s decision in Wheaten v. Peters, 33 U.S. 591 (1834) dating back to the earliest days of U.S. copyright law, it has been settled that the law, whether in a form of judicial opinion, legislative acts, or ordinances, is in the public domain and thus not subject to copyright protection. The reason for this is fairly simple: the public must have access to the law in order to follow it. This principle was confirmed in Veeck v. Southern Building Code Congress Int’l, Inc., 293 F.3d 791 (5th Cir. 2002), cert. denied, 539 U.S. 969 (2003), where the Fifth Circuit held that a model code developed by an organization and adopted by a legislative body becomes “the law” and may be reproduced or distributed free of copyright restrictions.

Nevertheless, a significant number of model codes and technical standards that have been adopted into federal, state or local laws are often available only from the respective SDOs that developed them, and only in exchange for a fee. These include building codes, fire preventions standards, electrical, fuel and oil safety standards, and many others. SDOs are typically non-profit entities that have expertise in specific technical areas and whose goal is to develop, promote and have enacted into the law various safety codes and standards. Because model codes and standards oftentimes are incorporated by reference into federal, state and local regulations, they are not necessarily published in Federal or State registers. As a result, the purchase of a standard from an SDO is in many cases the only way to get access to an enacted standard.

SDOs claim that their technical standards and codes are works of authorship protected under the copyright law, regardless of whether they have been adopted into law by federal, state or municipal bodies. Several SDOs took actions against individuals and organizations who reproduced model codes and standards that were already adopted into the law, accusing them of copyright infringement and demanding to remove the allegedly copyrighted content from the Internet. Most recently, three SDOs, the National Fire Protection Association, the American Society of Heating, Refrigerating, and Air-Conditioning Engineers, and the American Society for Testing and Materials International, filed a copyright infringement lawsuit against Public.Resource.org for reproducing a number of safety standards that these SDOs developed and persuaded government entities to incorporate into law.

Testifying before the House Judiciary Subcommittee on January 14, 2014, the General Counsel for American General Standard Institute (“ANSI”), expressing the view of many SDOs, stated that the significant costs incurred by SDOs in connection with developing, promoting and maintaining technical standards require that SDOs be able to recoup some of their expenses by selling copies of standards to the public. Without this source of income, the counsel for ANSI argued, many SDOs may not be able to stay in business and as a result their important work would fall to the government, which would ultimately pass the costs on to the taxpayers.

The proponents of free-of-charge access to the safety standards led by open-government activist Carl Malamud argued that a free and easy public access to standards that have been incorporated into regulations is imperative to ensure that these standards are known and can be implemented by those governed by them. Mr. Malamud, a founder of Public.Resource.org, whose mission is to make technical standards that have been enacted into law freely available to the public in electronic, user friendly format, pointed out that many SDOs do not depend on sales of their standards as the only source of their income. Mr. Malamud argued that additional revenues come from membership, certification and training fees, and as the Fifth Circuit in Veeck suggested, SDOs can, and sometimes do, generate additional revenue from publishing annotated versions of their standards that include official comments, technical notes, as well as lists of jurisdictions that have adopted the standards.

In his petition, signed by 115 law professors, Mr. Malamud suggested the following amendment to the Copyright Act:

“Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.”

Several Subcommittee members agreed during the hearing that the law should be freely accessibly by those who it affects. Whether or not the revised Copyright Act will incorporate the amendment suggested by Mr. Malamud or adopt alternative language, it is expected that these revisions will limit the ability of SDOs to restrict access to model codes and technical standards after they have become law.

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