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Standards, Incorporation by Reference, and Copyright Discussed before Congress

ANSI’s General Counsel Patricia Griffin Stressed the Importance of a Balanced, Flexible Approach to Enable Access to Incorporated Standards while Protecting Copyright

New York, Jan 15, 2014

On Tuesday, January 14, 2014, the U.S. House of Representatives Committee on the Judiciary, Subcommittee on Courts, Intellectual Property, and the Internet, held a hearing on “The Scope of Copyright Protection.” During the hearing, members of the subcommittee heard testimony on copyright-related issues from the following witnesses:

  • David Nimmer, of counsel, Irell & Manella LLP
  • Glynn Lunney Jr., McGlinchey Stafford professor of law, Tulane University School of Law
  • Mark Schultz, associate professor of law and director of faculty development, Southern Illinois University School of Law
  • James Love, director, Knowledge Ecology International
  • Patricia Griffin, vice president and general counsel, American National Standards Institute (ANSI)
  • Carl Malamud, president, Public.Resource.Org

In her testimony, Ms. Griffin highlighted the unique nature of the U.S. standardization system, which is led by the private sector with hundreds of individual standards developing organizations (SDOs) working in different technical areas and industry sectors. The consensus-based standards development process relies upon participation by all relevant stakeholders, including representatives of industry, government agencies, nonprofits, consumer advocacy groups, and others.

She praised the current system as a public-private partnership – a term used to describe the long-standing, effective, and cooperative working relationship between government and industry. She further noted that the National Technology Transfer and Advancement Act (NTTAA) of 1995 and the associated U.S. Office of Management and Budget (OMB) Circular A-119 direct agencies to consider the use of private-sector-developed standards in lieu of government-unique standards whenever possible.

Ms. Griffin outlined the government’s use of incorporation by reference (IBR), a process by which privately developed voluntary consensus standards are adopted into regulations. These incorporated documents remain under copyright, but are required to be reasonably available to citizens affected by regulations. Ms. Griffin mentioned recent calls for the invalidation of copyrights for IBR standards, noting that reasonable availability has never been defined as access at no charge. She further cited federal court rulings and guidance from the Administrative Conference of the United States (ACUS) and the National Archives and Records Administration (NARA) that have supported the current definition of reasonable availability and the copyrighted status of incorporated standards.

Ms. Griffin also touched on the recent launch of the ANSI IBR Portal, an online tool for free, read-only access to voluntary consensus standards that have been incorporated into federal regulations, and suggested that the portal and other similar efforts by SDOs are part of a flexible, multi-faceted approach to assuring the reasonable availability of incorporated standards. She also stressed the essential role played by the sale of standards in the funding of standards development work in the U.S., and said that removing the copyright protection held by IBR standards could weaken or even bankrupt some SDOs. If these organizations cannot afford to stay in business, existing standards would not be updated and standards for new technologies would go unwritten – with major potential consequences to safety, U.S. competitiveness, and innovation.

Ms. Griffin’s written testimony and the testimony of the other witnesses is available online (to access the other witnesses’ written testimony, click on their names). In addition, a video of the full hearing can be viewed online here.

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