Abolishing copyright fails.

Olia Kanevskaia Whitaker, “The Saga of Copyrighted Standards: a Perspective on Access to Regulation,” The Research Handbook on Law & Technology, 06-19-2023, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4473104

a. Abolishing copyright over incorporated and harmonized standards

The most obvious solution to ensure access to standards that have become a part of legal acts is to abolish the copyright over standards altogether and put them into public domain, allowing their unlimited distribution. This way, those interested in the standards’ content will be able to consult the whole document without incurring any costs, as it is the case with legal acts and courts’ decisions.

While this may seem like an easy fix, the reality is more complex. By far not all standards produced by standards bodies make it into “law”: some technical documents thus do not acquire the “new public functions” to begin with. In theory, it should be possible to abolish the copyright only for the referenced standards; however, it is not always clear from early in the standards development process, whether a standard is being prepared with a view to becoming a part of law. Arguably, this is less of an issue in the EU, where the Commission can mandate harmonised standards; however, international standards, standards of other private bodies or even proprietary standards that are under the paywall and enjoy copyright protection can also be transposed into harmonized standards; moreover, standards incorporated or references in law may often refer to other international, European or national standards, that in turn also enjoy a copyright protection. Navigating through these competing copyright claims is a challenging task. For instance, it would mean that a standards body should revoke its copyright the moment it realizes that the standard will be incorporated: still, it makes a huge difference at which stage of development a standard is, and whether the drafters would still be willing to contribute to standardization processes knowing that their product will end up in the public domain. At the same time, lifting the copyright ex post, after the standard has been developed and identified for incorporation, may be unfair to those who have already purchased the standards document.61

Eliminating copyright protection and mandating free access for all incorporated and referenced standards results in more questions than answers. It may be thus reasonable to seek solutions by providing exemptions for “public access” to standards, rather than stripping standards bodies of their copyrights.