SDOs will still be able to protect certain standards.

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

While certainly not every governmental use of standards would quality as a “fair use,”63 and while it is only the use of some portions of standards documents that can benefit from Section 107 of the Copyright Act, one may see how a standard that has become a part of law and is made available to public without any commercial motives may be covered by the fair use doctrine. At the same time, whereas the doctrine protects the use of incorporated standards, it is inept to protect those who seek spreading information (Sweeney, 2017). In the recent PRO v ASTM appeal, PRO claimed a fair use defence since it believed to have provided free access to law, served the statutory and non-commercial purposes, and aimed to accomplish a transformative purpose.64 The D.C. Circuit Court declined to directly address the issue on the ground of constitutional avoidance, but held that the online publication of standards by PRO, while may be a fair use, should be further evaluated by the District Court case-by-case, or a “standard-by-standard”, basis.