And it’s magnified by the fact that it will be broadened by future litigation, further undermining the protections and rights of SDOs.
Griffin and Saunders 24 – Senior Vice President and General Counsel at the American National Standards Institute, J.D. from Albany Law School; Senior Vice President of Public Policy at the American National Standards Institute.
Patricia A. Griffin and Maury Saunders, “ANSI Publishes Action Brief on IBR Landscape for SDOs,” American National Standards Institute, 05-09-2024, https://www.ansi.org/standards-news/all-news/2024/05/5-9-24-ansi-publishes-action-brief-on-ibr-landscape-for-sdos
Why Is Copyright Protection Essential to Private Standards Development?
SDOs make their works available for use by governmental entities in setting safety and other regulations when those entities deem it in the public interest.
SDOs do so with the understanding that these works will retain their copyright protection.
This provides SDOs the ability to generate revenue from the sale and licensing of the works that they create, which, in turn, enables SDOs to sustain their ongoing standards creation, refinement, and updating.
What Are the Current Trends in IBR?
Notwithstanding federal policy, case law is trending towards limiting copyright protection in IBR’d standards.
What’s Changed?... Adoption of a Fair Use Analysis
As noted, fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder.
This follows a global trend favoring increased access to material free and online.
For example, a recent federal appeals case in a lawsuit brought by ASTM and others held: The non-commercial publication of standards incorporated by reference into law is fair use and not copyright infringement. There are several additional U.S.-based cases that may follow down this same track.
Where Will These Trends Lead?
Trends could continue with fair use dominating IBR analysis in the courts.
The fair use analysis might be extended beyond the ASTM case to include commercial exploitation of IBR’d standards.
The fair use defense may also be extended to the situation where a standard that is incorporated by reference into law itself references another standard that is not so incorporated.
Expansion of fair use analysis could lead to additional exceptions to assertions of copyright in all standards.
If SDOs cannot fund standards development as a result of loss of copyright in IBR’d standards, standards may not be updated as frequently, or for some industries not at all.