Des réflexions sur la conformité en matière d'environnement et de santé et sécurité

(ENG) Free Industrial Standards Referenced in Law

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Behind your car, your chicken dinner, and your slick iPad there lies a myriad of laws, regulations, and industrial standards that allow or prohibit certain industry practices. Companies know that regulatory compliance is a complex and tricky business. Few, if any, can claim to understand all of their legal obligations. The US Federal Code of Laws has over 200,000 pages; at that size, it seems unlikely that anyone is fully aware of their obligations. In Canada, the power sharing between Federal, Provincial and Municipal bodies can make compliance a tricky and moving target. In addition to government laws and regulations, we are also subject to international standards and codes created outside of government halls.

Most people outside of the auditing and legal compliance field don’t realize the complexity of the situation. In addition to traditional legal obligations outlined by Acts, regulations, codes, statutes and other documents adopted by democratic institutions, law around the world reference thousands of industrial standards. For example, Canadian law references industrial standards created by the Canadian Standards Association (CSA) over 1187 times. These standards are often overlooked by companies when they attempt to navigate the complex regulatory system. Whether you import or manufacture products or are a contractor for a larger company, these standards apply to you in one form or another.

Industrial standards are typically created outside of government by industry experts organized in standards bodies such as ANSI, NFPA, CSA, ISO and others. Once published, standards concerning a variety of environmental, health, safety and quality issues – from oil storage tanks to handling fuel and hazardous materials, to food safety – are referenced in laws and regulations, making them de-facto law. Governments outsource their responsibility to external industry experts who volunteer their time to write these standards, saving government resources. For example, the National Fire Code, an important regulatory document created by the Canadian Center for National Research can only be purchased in CD-ROM (yes, CD-ROM!) or in paper format and costs $190. Cost recovery by standards bodies is understandable, yet government needs to take a more active role in assuring that all companies have access to the standards they reference.

Modern democratic countries are founded on the rule of law and typically stipulate that laws be made available to citizens, free of charge. Since one cannot plead ignorance of law in court, one must have access to the laws that govern them. How can you respect rules set forth in a document you do not have access it? Since most industrial standards can only be obtained through a financial payment, their status is in direct conflict with access to law. Yet, the payments that are received by government and standards bodies is very limited. For example, the Québec government only collected $ 3.7 million dollars for all the standards it ever sold in its History. The median standard sold by Québec generated a revenue of $ 27 dollars for the government. Though difficult to break out, the CSA obtains some of its 290 million dollars in annual revenue from standards sales , according to its financial statements here. We are hardly talking about huge amounts of money when compared to the potential benefits to Canadian industry which could adopt more progressive standards.

Why are industrial standards not free? Despite the digitization of standards and free distribution through the internet, most standards come with restrictive copyrights and expensive price tags. The experts who write the standards are typically not paid; therefore, the revenues from sales of standards are primarily geared towards the standards bodies and their administrative staff that manage the committees, teams and publishing system. The costs of standards inevitably increase the cost of respecting the standard, reduces knowledge of best practices and discourages companies from endorsing progressive management standards. If standards were freely accessible, we would expect companies to adopt and respect them more.

While this applies to all standards, we can restrict this plea for openness to environmental, health and safety standards. It is arguably more urgent that we release EHS standards than other types of standards. EHS standards are designed to protect two things: the environment and worker safety. Surely, we would want our corporations and organizations to have that as their highest priority. Yet, by placing the standards behind pay-walls and complex copyright law, we are doing just the opposite. The perception of the need to charge for standards is slowly starting to change.

Consensus on the need to reform standards bodies and access to standards seems to be growing as seen in these great conversations on LinkedIn here, here and here. We could make the case that voluntary standards not referenced in law, such as ISO 14001, be sold for profit to help fund the standards development. But it seems clear that obligatory standards referenced in law should be free. If a standard is referenced in law, it becomes law and citizens should have uninhibited access to it.

After some haggling in Canada, the Canadian Standards Association (CSA) has made occupational, health and safety standards referenced in law publicly available. However, the CSA made them available in the least usable format possible. To access the standards, you need to sign-up to their website, select a province and then you can access a poorly formatted image of the standard, which means you cannot copy-paste content or share important requirements with your colleagues or clients. Clearly, the CSA did the bare minimum to meet the government request to offer the referenced OSH standards to the public. The difficulty of access to the standards ensures most companies still purchase copies of the them since those offered by the CSA are unusable. Or, they just ignore the standards and rely on the lack of inspectors.

Standards bodies often argue that they need some form of funding before they can set a standard free. There are other solutions, that would bring more overall benefits to the Canadian economy, than simply charging for standards. Perhaps we should stipulate that if the government chooses to reference a standard in a law, it should compensate the creators of the standard. Government should not pass the buck to the public, small businesses or people who are subject to the standards. In Europe, where voluntary standards adoption is more common, we notice that the manufacturing base is capable of producing the world’s best machinery, cars and equipment. Correlation is not causation, but it seems logical that the adoption of progressive industry-leading standards for quality, environment and health and safety will lead to benefits for all of society and for the economy.

While Canada still lags behind, the United States has notable activists who are fighting for access to standards and the fight is best described in this blog post by Carl Malamud. The fight has led to (questionably legal) online data dumps of standards that are still locked behind paywalls (data dumps here, here, and code projects here). This provocative tactic has unsurprisingly led to lawsuits, but it has also clearly shown the pressing need for a change in the system.

As technology accelerates and citizens and companies’ frustration mounts, I fear that more and more people will resort to « freeing » standards without permission. Both the government and the various standards bodies need to rapidly evolve their business model and offer standards referenced in law in open digital formats for free.

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