The Copyright Conundrum and Fair Use

Should industry standards be available to the public free of charge?
Susan MacKay
September 9, 2019
COLUMN : Letter of the Law | Codes & Standards

Many current building codes incorporate AAMA or ASTM standards into the code sections relating to windows and doors. For example, the 2009 IRC Section R612.3 states that windows with fall prevention devices and window guards “shall comply with the requirements of ASTM F 2090.” But the ASTM standard is only referenced, not quoted. To figure out just what are requirements of ASTM F 2090, the user must purchase the standard from ASTM. 

This is just one example of many industry-generated consensus standards that have gained the force of law by being incorporated into adopted building codes. Not everyone thinks it’s fair that the referenced standard must be separately purchased, including Public.Resource.Org (PRO), a nonprofit organization whose stated purpose is to make more widely available the law and other government materials. PRO furthers this goal by posting technical standards that are incorporated by reference into a law on the internet so they can be accessed for free. 

Several organizations, including ASTM, sued PRO for this practice, asserting claims including copyright and trademark infringement. PRO appealed a decision of the lower court that found in favor of the ASTM plaintiffs. In July 2018, the Court of Appeals for the District of Columbia weighed in with its perspective on whether consensus standards adopted by code must be freely available to the public. 

The question on appeal was specific: “Whether private organizations whose standards have been incorporated by reference can invoke copyright and trademark law to prevent the unauthorized copying and distribution of their works.” This is important to the fenestration industry where standards and building codes are routinely interconnected. 

The fair use defense

PRO argued that even if the works are copyrighted, posting the standards is a fair use because it “facilitates public discussion about the law,” which is a use within the public domain. After recognizing that the Copyright Act does not contemplate a situation in which a copyrighted work is incorporated by reference into a law, the court analyzed the issue under the fair use defense. This defense provides that the use of a copyrighted work for certain purposes, including research, is not an infringement of copyright. The appellate court emphasized that application of the factors is fact-specific and is done on a case-by-case basis. 

The court discussed each of the fair use factors in detail and, in doing so, basically gives PRO a road map of how it can meet the exception. The exception can be met if the standards PRO disseminates are incorporated into law by reference, but the requirements of the standard that must be met for compliance are not found in the text of the law itself.

The court tried to limit the amount of material freely distributed by stating that PRO may only post portions of the standard that readers need to understand how to comply with the law—for example, if ASTM F 2090-10 were referenced, only the relevant portions of the 2010 edition could be disseminated.

The case was returned to the lower court and motions for summary judgment on the copyright and trademark fair use issues are due for filing this fall. The opinion’s text suggests that the appellate court is hopeful the lower court will find a way for PRO to publish portions of standards that are incorporated into law. 

That outcome, however, will depend on the willingness of the lower court to reconsider its prior decision that very clearly was in favor of the ASTM plaintiffs. With the increasing number of incorporated standards within legislatively enacted building codes, this is an important issue that will impact the fenestration industry for years to come.

Susan MacKay is an attorney with The Gary Law Group, a law firm based in Portland, Ore., that focuses on legal issues facing manufacturers of windows and doors. She can be reached at 503/620-6615 or susan@prgarylaw.com.