Copyrighted standards could not fall under the free access mandate.
Bremer 19 – Professor of Law at the University of Notre Dame, J.D. from New York University.
Emily S. Bremer, “Technical Standards Meet Administrative Law: A Teaching Guide on Incorporation by Reference,” Notre Dame Law School Scholarship, https://scholarship.law.nd.edu/law_faculty_scholarship/1406/
If the free access mandate effectively prevents agencies from using copyrighted standards that cannot be made freely accessible, how would that affect the agencies' ability to fulfill their respective statutory missions?
In some instances, an agency is required by statute to use a specified private standard in its regulation. For example, the Consumer Product Safety Commission (CPSC) is required by its own organic statute to use standards developed by the American Society for Testing and Materials (ASTM) in CPSC regulations on toy safety.8 2 If ASTM standards are copyrighted and cannot be made freely available, the CPSC would not be able to