Regulatory Adoption by Reference of standards

Copyright Considerations

January 2004

George T. Willingmyre, P.E.

This paper explores the practical aspects of regulatory adoption of standards developed by voluntary standards developing organization.  The paper presents highlights of the Veeck decision;  discusses the regulatory process of adoption by reference with some examples; presents comparable European activity and closes with several legislative activities

Other related papers include   Legislative and Regulatory Underpinnings of US Government use of Standards in Technical Regulations and Procurements and the development by Government of standards  and  The National Cooperative Research and Production Act and US Antitrust law applicable to standards setting 

Veeck summary

In the Spring of 2003, the Supreme Supreme Court decided not to hear an appeal of the Fifth Circuit  court June 7, 2002 decision   in Veeck vs. SBCCI No. 99-40632 that when  a  copyrighted standard or code is referenced into law (particularly if it thereby becomes "the law"), the developer cannot enforce its copyright against a free  distribution of the standard. This case is  a matter of considerable concern  to  the Southern Building Code Congress International (SBBI) and  to many other standards developers who depend upon the sales of their published and copyrighted standards to support their continued operation.  

Contemporaneously,  the Copyright Office of the Library of Congress,  in correspondence with a voluntary consensus standards organization seeking copyright for their standards publications,  stated: "After further consideration of these works following our phone call, I had questions regarding the extent of the claims, relating to the possible public law status of the words... it is the position of the Copyright Office that public laws are in the public domain and are not subject to copyright protection. 

Incorporation by reference is a common practice by Federal Regulatory Agencies to refer to standards documents published elsewhere. Should the copyright owners of the private sector standards incorporated by reference loose the ability to collect income from the sale of such private sector documents, the continued viability of the US consensus standards infrastructure and current business model is seriously threatened. 

According to the May 30 amicus brief by the US Solicitor General in the Veeck case:  by our own count the Code of Federal Regulations contains more than 7000 references to privately developed codes and standards, upon which federal agencies rely in a very wide variety of settings, Nonetheless, predictions do not provide an in independent basis to grant certiorari in this case. If, as petitioner argues, the Fifth Circuit decision were understood as broadly applicable to all government adoption of and reference to privately developed standards and codes, the effect of this decision would still be highly speculative. The extent to which standards setting organizations depend on the sale of copyrighted works no doubt varies widely, and such organizations have survived and prospered despite the threat to their copyright income

Incorporation by Reference

Incorporation by reference allows Federal agencies to comply with the requirement to publish rules in the Federal Register by referring to materials already published elsewhere. The legal effect of incorporation by reference is that the material is treated as if it were published in the Federal Register. This material, like any other properly issued rule, has the force and effect of law Congress in Public Law Pub. L. 90-23 gave the discretion to the Director of the Federal Register when to allow incorporation by reference of matter "which is reasonably available, as published in the Federal Register when such matter is incorporated by reference in the Federal Register with the approval of its Director."  According to Section 552 of Title V applying to the publication of material in the federal Register For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register   According to Chapter 6: What is Incorporation by Reference, and How do I do it? of the Federal Register Document Drafting Handbook October 1998 Revision The Director may approve an incorporation by reference if the material: * Is published data, criteria, standards, specifications, techniques, illustrations, or similar material;* Is reasonably available to and usable by the class of persons affected by the publication;* Does not reduce the usefulness of the Federal Register publication system;* Benefits the Federal Government and members of affected classes; and* Substantially reduces the volume of material published in the Federal Register.

Several current  examples  of such regulatory agency use  of standards though the process of incorporation by reference include:

CERTAIN PIECE GOODS, AS AMENDED EFFECTIVE SEPTEMBER 1, 2000  16 CFR 423.8 G  adoption of reference of ASTM symbols 

Searchable database  FDA list of private sector standards found helpful for regulatory purposes   

October 2, 2002  FDA Modernization Act of 1997: Modifications to the List of Recognized Standards, Recognition List Number: 007

January 7, 2004 The Nuclear Regulatory Commission (NRC) proposal  to amend its regulations to incorporate by reference the 2001 Edition and the 2002 and 2003 Addenda of Division 1 of Section III of the American Society of Mechanical Engineers (ASME) Boiler and Pressure Vessel Code

December 31, 2003 DOT amendment of Hazardous Materials Regulations (HMR) to standardize the format used to cross-reference consensus standards published by nationally and internationally recognized standard-setting organizations and industry that are incorporated by reference into the HMR

During an ANSI  legal issues conference in the Fall of 2003, the consensus of the expert panelists was that  the copyright holders of such standards as are "incorporated by reference" as in the examples above were in  less jeopardy of losing the protections of their copyrights in the referenced standards than would be the owners of copyright in standards where the text of the standard is copied verbatim in to the legal text or regulation.  For example in the Federal Register of Tuesday September 23 September the  National Highway Traffic Safety  Administration proposed the adoption of  nearly all of the ISO symbols from ISO 2575  in the NPRN   for Federal Motor Vehicle Safety Standards; Controls and Displays and reprinted about 90% of the contents of the ISO standard.  In this instance the owner of the "copyright" in the standard and symbols is the International Organization for Standardization (ISO) and whose copyright interests in the standard are represented by the American National Standards Institute.  

European Activity

The European Commission publication Methods of referencing standards in legislation  is geared as a best practice document for European Legislators to be applied when the option of using standards is under consideration. The European legislator makes broad use of standards to support Community legislation. Taking into account the current reflections about governance and better regulation which recommend an increased use of co-regulatory and self  regulatory practices, it may be expected that the use of standards to support legislation will increase as well. The methods applied while making reference to standards in legislation vary significantly. The following document gives an overview of the different methods showing concrete examples with their advantages and disadvantages. It is geared at all legislators at European, Member State and country candidate level and aims to provide recommendations for ‘best practice’ to be applied if, while drafting legislation, the option of using standards is chosen...If a legislator includes standards in a legal act or makes reference to them in one way or another standards can obtain legal quality. The standards thus become a part of the requirements of a specific legislative act or of the system.  While the paper acknowledges the attainment of a standard of  "legal quality" there is no mention in the guide of the implications of copyright of the standards so referenced.

The American National Standards Institute recently provided to its members a non-authorized translation of what seems to represent the German copyright office solution to the Veeck matter. Section 5 of the German Copyright Act:   §5 Official Works  (1) There is no copyright on laws, regulations, official decrees and  official announcements nor on decisions and official guidelines on decisions. (2) The same applies to other official works which have been published in the official interest for the information of the public, with the restriction that the provisions regarding the ban on modification and the acknowledgement of quotation given in § 62 section 1 to 3 and § 63 section 1 and 2 are to be applied accordingly. (3) The copyright on private collections of standards is not affected by section 1 and 2 if they are referred to in laws, regulations, decrees or official announcements without reproduction of their wording. In this case, the originator is obliged to grant each and every publisher the right to copy and distribute on reasonable terms.  If a third party is  the holder of the exclusive right to copy and distribute, that party is obliged to grant the license of use in accordance with sentence 2.

Legislative Activity

In precedent setting Legislation  The Help American Vote Act of 2002 PL 107-252 cautions that there shall be no private sector intellectual property rights in guidelines ... The Development Committee shall assist the Executive Director of the Commission in the development of the voluntary voting system guidelines.... including-- (A) the security of computers, computer networks, and computer data storage used in voting systems, including the computerized list required under section 303(a); (B) methods to detect and prevent fraud; (C) the protection of voter privacy; (D) the role of human factors in the design and application of voting systems, including assistive technologies for individuals with disabilities (including blindness) and varying levels of literacy; and (E) remote access voting, including voting through the Internet. (3) No private sector intellectual property rights in guidelines.--No private sector individual or entity shall obtain any intellectual property rights to any guideline or the contents of any guideline (or any modification to any guideline) adopted by the Commission under this Act.  It is a matter of current uncertainty the implications of this requirement with respect to any voluntary consensus standards that might be incorporated by reference in such Guidelines or furthermore how this text might apply to any essential IPR that may be required to meet such guidelines

HR 2239 Introduced May 22, 2003   Voter Confidence and Increased Accessibility Act of 2003    (PDF GPO Version)  proposes to amend the Help America Vote Act of 2002 to require of SOFTWARE AND MODEMS-(i) No voting system shall at any time contain or use undisclosed software. Any voting system containing or using software shall disclose the source code of that software to the Commission, and the Commission shall make that source code available for inspection upon request to any citizen. (ii) No voting system shall contain any wireless communication device at all. (iii) All software and hardware used in any electronic voting system shall be certified by laboratories accredited by the Commission as meeting the requirements of clauses (i) and (ii).'.

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