Public Information or Copyright?

By Matt Johnson, The Gary Law Group
February 28, 2017
THE TALK... | Codes & Standards

Should all parts of the law—including building codes—be freely available? This question was addressed, in part, in a recent copyright lawsuit involving ASTM and PublicResource.org. The issue was whether the standards developed and published by ASTM, and later incorporated into laws, are entitled to copyright protection.

PublicResource.org is a nonprofit that places legal information online and does not charge for access. ASTM sued PublicResource.org because it had placed over 250 ASTM standards online in connection with federal laws that incorporated those standards.

ASTM argued that its materials were copyrighted and subject to its control, despite their adoption and incorporation into federal regulations. PublicResource.org responded, arguing that the incorporation of the standards into regulations deprived the standards of copyright protection because of the public’s need to access laws. The court recently agreed with ASTM.

In a lengthy opinion, the District Court held that the consensus standards developed by ASTM and others that are incorporated into laws do not lose their copyright protection. After finding that the standards were entitled to protection and that publishing them online violated the copyright protections, the District Court then issued an injunction permanently barring PublicResource.org from violating the copyright on certain standards and from violating ASTM’s trademark on others.

We all know that building codes and fenestration performance standards are very sophisticated documents; often developed over the course of years, with input from hundreds of industry members. We also know that these standards are expressly incorporated into building codes (laws) as well as public works contracts. These standards have a large impact on the window and door business.

The effort that goes into generating these standards cannot be denied and it seems that these standards should be protected. Equally, where a standard has been incorporated—and thus, must be purchased by those seeking to understand the law—can be viewed as less than fair.

Do you feel the court got it right? Review the results of this week’s poll, post a comment and/or email your thoughts on the subject. 

Survey Results for 03/01/2017: Should consensus standards that are incorporated into laws be publically available, for free?
Yes; once a standard becomes a law it needs to be public.
  
 
63.00%
 
No; the effort required to publish these standards means they should be protected.
  
 
33.00%
 
Depends; performance targets should be public, but test methods should not.
  
 
4.00%
 

 

Matt Johnson is an attorney with The Gary Law Group, a law firm based in Portland that focuses on legal issues facing manufacturers of windows and doors. Contact him at 503/620-6615 or matt@prgarylaw.com.