Can the Law be Copyrighted?

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Excerpts

Una Jefferson: So I know this issue of the accessibility of standards and codes is one that’s very close to your heart. Why does this matter and how is access limited right now?

Jonathan Brun: If we go back to the foundational question, which is, if we want people and organizations to respect the law, they need access to it. They always say you can’t plead ignorance to the law, but if you can’t access the law then you don’t have any choice but be ignorant of it. Standards are in some ways part of the legal body. They aren’t necessarily issued by government, but because they’re heavily referenced by government in laws, regulations, and other documents, they often become de facto law. If you can’t access these standards or if the costs to access the standards are prohibitive, then ultimately you are preventing people from accessing the law, which goes against some of the foundational parts of a just and available legal system.

Una Jefferson: Can you give one or two examples of standards that are incorporated into law in this way?

Jonathan Brun: I’m more familiar with the Canadian situation where there are around 1900 different standards referenced in laws, acts or regulations. B139-Ontario is a standard for boilers, and this is referenced numerous times in different regulations in Ontario. So if you own a boiler as a company not only do you have to respect the regulation, but you have to respect this standard which is controlled by the Canadian Standards Association. So you have to go and buy a copy of the standard from the association, you can’t access it for free anywhere. There are some standards that cost thousands of dollars. There are some standards that are lower costs, but nevertheless you have to pay for them.

Una Jefferson: So what’s the status of activism on this right now? You’ve blogged about the work of Carl Malamud who has been going through progressive court challenges for posting standards online. So where are we right now on this?

Jonathan Brun: To my knowledge the only real activist is Carl Malamud who has been publishing standards and documents, things like the fire code, the building code, from a number of jurisdictions where that’s not freely available. He’s been sued by a number of different governments and standards bodies for copyright infringement. There’s no organized movement around this situation, unfortunately. Ultimately it’s really the government’s job. The one country where there is some activity in this direction is China. China announced a couple of years ago that they were going to make all standards freely available. We can criticize the Chinese government for many things, but it is very serious about getting its industry to improve and make higher quality, safer, and cleaner products. This is a mammoth task but one way you do that is by issuing standards and then forcing companies to respect them. By making the standards freely available, you remove the excuse of companies to say they didn’t have access to the standard or they couldn’t afford it. So the Chinese government is making the standards freely available with really the specific goal of pushing the industry forward.

Una Jefferson: Let’s talk a bit about the business model of these standards. Organizations like the American National Standards Institute claim that it is cheaper for governments to allow standards bodies to develop these standards and that the cost of the standard is necessary to cover the cost of gathering, developing, and formatting these standards. So what’s going on in China- is it more expensive for the government to provide these standards? Is that a cost that they are willing to cover? What alternative business models are out there?

Jonathan Brun: In China yes, it’s the cost the government’s willing to cover. They view it as an investment in industry. As for whether it’s cheaper for a standards body to create standards than it is for government, honestly, it might be a little bit cheaper but it’s not an order of magnitude cheaper. So if the government took over this type of responsibility, maybe that would inflate cost by 10 or 15 percent. But it’s not going to substantially increase the costs. Even if it is cheaper for standards bodies to issue the standards, that doesn’t necessarily mean that the cost recovery has to be on selling the standards. There’s other ways that they could generate revenue, and they do. A lot of these standards bodies sell things like training around the standards. They sell services related to understanding how the standards are to be interpreted and applied. They sell software related to the standards. So there’s lots of other ways that the standards bodies could make money off of the standards. They do have in house expertise, they have access to a certain user base so they don’t necessarily need to make their money back by selling the standards. In fact, I would argue that if they were to make the standards free, it would encourage more companies to adopt the standards and therefore more companies would require those additional services such as training and support around the standards. So I don’t think that they need to sell the standards to make their money back. There’s lots of other ways they can make money and cover their operating costs.

Una Jefferson: Have you, have you seen any trend towards a greater uptake of standards in China or is it too early to say?

Jonathan Brun: Amongst our client base at Nimonik we get way more requests from Chinese companies for access to standards and for information about standards than we do anywhere else in the world. That’s anecdotal, it’s not a broad scientific data point, but nevertheless, we definitely see the Chinese companies take the standards very seriously, both the voluntary ones and the mandatory ones. I would suspect that you would see that in other countries too, if we were to make standards freely available and if the government would really push them and say, hey, you know, these are the best in class standards, we really highly recommend to you adopt them. But we do have a tendency in the west to delegate this type of work to industry bodies. So you have standards bodies like the CSA but you also have industry bodies, for example for the steel industry, the mining industry, there’s the Canadian Mining Association who have standards called Beyond Sustainable Mining or Towards Sustainable Mining, and you have the Green Marine, which is an international standard related to environmental protection in the maritime industry, so shipping, ports etc. And that’s done by industry for industry. We tend to delegate that often to industry, whereas in other countries like China, the government has taken a more proactive role in pushing industries to improve.

Una Jefferson: There was a kind of a strange one off last year in Canada where the National Energy Board decided that it would make the Canadian Standards Association standard Z662 for oil and gas pipelines publicly available for free for a year. It called it a pilot project which is over now. What do you think is going to come of this pilot project?

Jonathan Brun: Well they did it as a small favour to the industry in Alberta. The CSA historically has made some standards available free of charge. They were obliged by the government a few years ago to make standards related to worker occupational health and safety freely available. They did that, but they did it in the way that would make the standards as least useful as possible. They put the standards online but they put them in a scanned format, meaning that you could not copy and paste from the documents. You could only view one page at a time. You couldn’t download the documents. It was like looking at an image of a page on the Internet and you can only look at one image at a time. So they basically did everything they possibly could to force the people to still buy the standard while theoretically respecting the government request to make these standards freely available. So the CSA has a track record of really doing everything they can to not make these standards available. I think they did this in Alberta really just a small favour. They figured it’s just one standard, not a big deal and I think they’ve since taken it offline.

Una Jefferson: Yes, that is correct. So it sounds like these small concessions haven’t necessarily built up to any kind of momentum in Canada. What about the United States? Where do we stand on the court cases about copyright in standards development there?

Jonathan Brun: I honestly am not that familiar or up to speed in terms of which court cases are still in process and which are pending. But I know, Carl Malamoud lost one or two court cases that were significant and these were specifically actually tied not even to standards, but access to the law. A couple of US states have signed agreements with private companies such as LexisNexis to publish the state regulations and codes and statutes online. And these organizations then claim copyright on those documents which are entirely paid for by the public purse. Carl Malamud had published some of these online and was sued by the state and lost. I believe the argument turned around the fact that in addition to publishing the codes and statutes, they also published things like comments and jurisprudence that was linked into the codes and statutes and they argued that that was copyrightable and therefore the whole thing was copyrightable. Again, I might be misinterpreting or misrepresenting this, but that’s my understanding. I’m not aware of the state of the other lawsuits that are ongoing in the US. I know there’s a whole bunch by different industry standard bodies, but I wouldn’t be able to comment in an educated way on those.

Una Jefferson: Well it’ll be interesting to see how this all develops with these steps taken in China.

Jonathan Brun: Yeah. I think China will take a lead here. Government’s the only one to be able to push the standards bodies to do this.

Una Jefferson: If government were to decide that this was a priority issue, do you see that happening through industry pressure or through public interest?

Jonathan Brun: I think it would probably be through industry pressure. Public is honestly not aware that there are such things as industry standards. They might see a sticker like CSA on certain products, but beyond that, there’s no real understanding. I personally reached out to the Canadian government without much success on this issue. Obviously Carl Malamud and others are fighting hard in the US and hopefully there are some initiatives as well in Europe. But, it’s really up to government to do this. There’s not really any other way about it.