Documents Adopted Into Government Regulations Copyrightable

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By Peter Leung

A non-profit website that seeks to make government information more available, can’t publish documents created by private industry groups, even if those documents outline standards that have been incorporated into government regulations, a federal court ruled Feb. 2 ( Am. Soc’y for Testing & Materials v. Pub.Res.Org, Inc. , 2017 BL 32182, D.D.C., No. Case No. 13-cv-1215 (TSC)Case No. 14-cv-0857 (TSC), 2/2/17 .

The U.S. District Court for the District of Columbia granted summary judgment in favor of the industry groups, rejecting the non-profit’s argument that the documents lose copyright protections once they’ve been incorporated by reference into federal regulations.

The court ruled that Public.Resource.Org Inc. is infringing the copyrights, and ordered it to take down its links to the documents.

Some of the standards at issue include 206 created by the American Society for Testing and Materials and incorporated by reference into Environmental and Protection Agency regulations. Some of the other plaintiff organizations include the National Fire Protection Association Inc., the American Society of Heating, Refrigerating and Air-Conditioning Engineers Inc., and the American Psychological Association Inc.

Not Government Authored

Section 105 of the Copyright Act states that government-authored works do not receive copyright protection. Public Resource argued that this should apply to privately created documents that are referenced and incorporated into regulations. Like court decisions, these documents become “legal facts” that cannot be copyrighted, they said.

The court rejected this argument, saying that the standards are not authored by government officials or employees, as is the case with court cases or laws.

It also said that by the time Congress enacted Section 105, federal agencies already had the power to incorporate by reference privately authored works. This means that Congress considered these private works and worded the statute to ensure that they had copyright protection, the court said.

The court said that while there may be a public interest in making these standards more available to the public, these these policy debates should be handled by Congress rather than the courts.

Reasonable Access

The court also said that there is no requirement that laws and regulations must be accessible online at zero cost. It pointed out that Congress authorized the Government Publishing Office to charge reasonable fees to access the Federal Register or Congressional records. The fact that it chose not to levy those costs doesn’t take away from this fact.

Public Resource’s argument that the standards are not copyrightable because they describe only methods or systems also failed to convince the court. Even though many of the standards are entitled a “method” or a “system,” the court said that this mischaracterizes the works in question. The industry standards documents contain things such as commentary and explanations that meet even the “extremely low” creativity requirement to get copyright protection, the court ruled.

The complex standards at issue here are much different from “a list of ingredients or basic instructions in a recipe, or a series of yoga poses,” the court said.

Judge Tanya S. Chutkan decided the case. Morgan, Lewis & Bockius LLP, Munger, Tolles & Olson LLP, King & Spalding LLP and Quarles & Brady LLP represented the industry groups. Fenwick & West LLP and the Electronic Frontier Foundation represented Public Resource.

To contact the reporter on this story: Peter Leung in Washington at pleung@bna.com

To contact the editor responsible for this story: Mike Wilczek at mwilczek@bna.com

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