Copyright to Private Standards Government Embraces

golden-copyrightUnder what circumstances do privately-generated standards lose copyright protection by virtue of governmental approval, mandate or adoption of them? The law on this subject remains unsettled, with a few somewhat conflicting federal circuit court decisions and no Supreme Court direction. The issue is when standards become functional law so that, under principles of justice dating to Roman times, they must be freely accessible to the public.

Interest heats up after a firm based in California asks people to scan works that have been referenced in the Code of Federal Regulations for inclusion in the firm’s free standards database. This is a bold move for the firm to undertake and a potentially risky one for those responding to its request.   My 2005 Michigan Law Review piece offered a framework for resolving these problems; the following abstracts it a bit and applies it to the California firm’s request.

The leading case potentially favoring the firm’s stance is Veeck (5th Cir. 2002) where a divided en banc court held that copyright to a building code is lost when a legislative body enacts it as law. The majority emphasized that legislative adoption rendered the code law and this, ipso facto, put it in the public domain, ineligible for copyright. Dissents emphasized need to consider incentive effects of such a conclusion on future production of kindred materials.

Important in Veeck was how the building code was created solely for the purpose of being enacted into law by an author having solely that purpose. So even this case does not comprehensively support the California firm’s implicit claim that mention of standards in the CFR deprives them of copyright protection.

Two important cases stand on the other side of the firm’s implicit position. Practice Management (9th Cir. 1997) held that the American Medical Association did not lose copyright in a medical procedure coding system even when government regulations required its use. Notably, these standards were developed for reasons other than enactment as law, chiefly to enable medical practices to manage data. To that extent, basic copyright incentive rationales remain applicable to justify sustained copyright protection.

Similarly, CCC (2d Cir. 1994) found a copier liable for copyright infringement of published information on used car valuations in the Red Book. The copier’s public domain defense to infringement rested on establishment in state insurance law of Red Book values as an alternative standard to set minimum loss payouts. This was insufficient governmental embrace of the standards to render them law in the public domain.

An unresolved variant on these themes occurs when a governmental authority creates the standards or anoints a designated representative to do so. A good example is when Congress directs the SEC on how to recognize FASB as the official setter of accounting standards. Although there is a good case that these should not enjoy copyright protection, being functionally positive law, FASB continues to assert copyright ownership over the standards.

At stake in these cases are hard questions concerning what constitutes law, which can be probed according to the manner and strength of government embrace of given standards, plus perplexing policy issues balancing access to law with incentives copyright provides, hinging in turn on contending factors like the author’s identity, the nature of the work, the identity and nature of the copier, and the relation of the governmental entity to the author, work and copier.

From this array of problems, my earlier article offered a three-part classification scheme.  It describes the strength of government embodiment, for convenience, as weak form, semi-strong form and strong form.  The framework then enables weighing the important factors relevant to policy balancing .

In the framework, the easiest cases are (1) weak-form adoption, embrace by mere reference, as in CCC, and (2) strong-form adoption, embrace by quasi-official promulgation, as with FASB.  Harder are cases in between, certainly like Veeck and even Practice Management.

Despite difficulties for many case types, my best guess, under prevailing law and normative policy, is that mere mention of a work in the CFR does not affect copyright protection in it.  

This is not to rebuke the California firm, however, for its mission appears to be to promote open government, which comports with President Obama’s directive to members of his administration and is, in principle, a valid objective.

In that spirit, moreover, it would seem desirable for Obama administration proponents of open government to consider cases like FASB, where quasi-official authorities continue to promulgate binding standards, but assert copyright over them.

Hat Tip: Robert Richards

You may also like...