Despite a number of cases across the last four decades, the judicial system is divided over how the issue of copyright for technical standards should be decided. Only a strong Supreme Court ruling can create clarity.

Kevin J. Hickey, “Copyright in Standards Incorporated by Reference into Law and the Pro Codes Act,” Congressional Research Service, 09-26-2023, https://sgp.fas.org/crs/misc/R47656.pdf

The copyright status of IBR standards has been litigated in a number of significant federal cases since at least the 1980s. Despite more than 40 years of history, courts have not reached a definitive consensus on (1) whether technical standards remain protected by copyright after they are incorporated by reference into law, or (2) if IBR standards are protected, whether the fair use doctrine or the Constitution permits third parties to make them publicly available despite the copyright.

On the first issue—whether incorporation by reference into law puts standards into the public domain—several decisions by the federal courts of appeals have reached seemingly inconsistent conclusions.34 Following the D.C. Circuit’s 2018 ruling in ASTM v. PRO I and the Supreme Court’s 2020 decision in Georgia v. PRO, 35 recent cases have increasingly avoided the broader copyrightability issue and focused instead on the fair use doctrine, while typically ruling against SDOs’ copyright infringement claims.36