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Top EU Court Advisor Says Technical Standards, Like Laws, Should Not Be Locked Down By Copyright
from the would-you-download-a-law dept
One of the most pernicious ideas that copyright maximalism has spread is that preventing people from freely accessing creative material is not just a good thing to do, but should be the natural state of affairs. This has made questioning whether copyright is really the best way to support artists and promote creativity hard. Against that background, there’s an interesting opinion from one of the top EU court’s special advisers, known as advocates general, suggesting a situation in which copyright definitely should not be applied. The Court of Justice of the European Union’s press release explains the background:
Public.Resource.Org Inc. and Right to Know CLG are two non-profit organisations whose focus is to make the law freely accessible to all citizens. The organisations had challenged before the [EU] General Court a Commission Decision refusing to grant them access to four harmonised technical standards (HTS) adopted by the European Committee for Standardisation (CEN) with respect to the safety of toys in particular. As their challenge was unsuccessful, they appealed the General Court judgment before the Court of Justice.
In today’s Opinion, Advocate General Laila Medina looks into the question whether the rule of law as well as the principle of transparency and the right of access to documents of EU institutions require that HTS are freely available without charge.
The conclusion reached by Advocate General Laila Medina is straightforward:
for the purposes of EU law in general and for the access to EU law in particular, and, given HTS indispensable role in the implementation of EU secondary legislation and their legal effects, they should, in principle, not benefit from copyright protection.
Moreover:
even if HTS could be protected by copyright, free access to the law has priority over copyright protection.
The basic idea is simple: people can’t be expected to follow a law (or technical standard) if they don’t have ready access to it. Copyright is a barrier to access, and therefore should not be allowed for harmonized technical standards (HTS), just as it is not permitted for EU laws. And even if for some reason HTS were subject to copyright, free access must be granted anyway, blunting its negative impact.
It’s worth emphasizing that the Advocate General’s opinion is only advisory, and may be ignored by the main court when the latter issues its final judgment on the case. Nonetheless, it’s great to see one of the EU’s top legal authorities dare to go against today’s orthodoxy that copyright is so wonderful it should be applied to everything, no exceptions.
Follow me @glynmoody on Mastodon. Originally published to WalledCulture.
Filed Under: cjeu, copyright, eu, standards
Companies: public.resource.org, right to know
Comments on “Top EU Court Advisor Says Technical Standards, Like Laws, Should Not Be Locked Down By Copyright”
Ugh
The gap between a law and a technical standard is wide enough to drive an entire engineering department through. There are technical standard that are law (NFPA 70 (NEC)) and they are read into state code making them freely available. Because you can’t copyright the law.
I have very mixed feelings about this, but calling a copyright on the creative works of a group “copyright maximalism” is a stretch. A technical standard can represent thousands of hours of research, drafting, editing, and writing.
Re: So Pay for the work
Why would a state not want to pay for the works of a body of research that is then incorporated into law. Technically the takings clause already covers this, those people indeed did hundreds of hours of work so we can have a safe fire and electrical code.
Then next year, pay for revisions to that work. Get a few staff to review it and validate they are doing updates (and not just moving deck chairs around).
This fixes most everything, the only real argument is the value, but since the works are being sold, it would not be hard to calculate how many copies are sold, add some overhead for DIYers, and heck, nothing stops them from going to all 50 states if their code is good.
Even better, if one state finds a problem, they can point it out. CA is very agressive at some clean air stuff, while other states want other things.
Re:
And yet, they want it to be a standard.
Choose one.
Re: Re:
The vast majority of standards are not required, but optional. They are not law, and distinctly different from law.
Re:
And so do a lot of other things such as the construction of infrastructure, educating of young minds, and so on. None of those would qualify for copyright. You could argue that copyright contributed to those or that it makes them similar to copyright, but looking at how copyright law is enforced and its fees collected, I would not trust those with a vested interest in expensive IP law to be the universal gatekeepers for who owes who money.
Re: Re:
That is, of course, completely wrong. Any ‘original work of authorship” has copyright. That includes groups. So the only distinction here is that a set of copyright standards became the law. Which I agree that means they need to be freely available and open. But saying ALL standards don’t deserve copyright is…..an absurdity at best.
Re:
Just because something entails hours of work doesn’t mean it should get copyright protection! If a copyright work is to be included in the law the state must pay for the work before including it. It is putting copyright n things that we are required to read that is absurd maximalism, laws can represent thousands of hours of work from hundreds or thousands of people and they do not get protection.
Re: Re:
Even in law, copyright lasts longer than a human lifespan.
It is not surprising to see that to a pro-copyright person, protecting the interests of copyright outweighs protecting the interests of the general public.
Re: Re:
States do not license the NEC before making it law. But I already addressed that it is freely available as the NEC is a read, in whole, into the law.
Re: Re: Re:
It’s freely available because Carl Malamud put it up, and had fought and won in court when sued for doing similar things. I don’t believe any state or federal agency has ever made it freely available, or suggested it’s legal to share.
The authors of that code—the NFPA—say this:
“Copyright © NFPA. For exclusive use on NFPA Free Access platform. Not for distribution. downloading, or printing. For inquiries contact custserv@nfpa.org. To report unauthorized use, contact legal@nfpa.org.”
They make individual pages available for free to registered users (probably after making them agree to never reveal what they find within), apparently in some effort to prevent legal challenges to its copyright status. It looks like my copy comes form someone grabbing one page at a time and screenshotting and OCRing them. I don’t see a “proper” 2023 version readily available on either Library Genesis or public.resource.org.
Re:
“A technical standard can represent thousands of hours of research, drafting, editing, and writing.”
So do things that not only never become adopted standards, but actually dilute the market and lose sales in general.
I can see your point, but also the reality of the marketplace is that if you’re trying to hide a “standard” behind a paywall you’ll usually lose anyway (e.g. Betamax lost to VHS because Sony licensing was more expensive, that’s also why their memory card formats never caught on, etc.)
Also, it’s worth stressing – a standard being generally accepted, or a creative work going into the public domain does not mean that the originator can’t make money. It just means they can’t stop others from doing so. The originators should have something extra to offer in theory, as it’s their creation.
Paul B and Mamba,
(Do note that I speak from experience as an American, I have no idea how things work in the EU.)
Essentially, those outfits that set standards are actually testing laboratories, and they charge (big!!) bucks to do testing. More or less, private companies fund those labs, and in turn the labs set various ‘standards’ that should be met for recognition as being safe, etc. (That’s not to say that governments can’t submit items for testing as well, but they’ll pay the going rate, to be sure.)
The fact is that governments incorporate these standards into bodies of law in the name of public safety, which directly implicates the public domain. And we all know what that means for copyright, don’t we.
Re:
In my experience that is not how it goes in Europe. EN and ISO norms are created by groups of experts. Usually made up of people from the industry, employed by companies that have a stake in the norms being workable.
It might be a problem for those organisations if they can’t copyright the norms. To my understanding, that is their business model. Create standards and sell copies of the standard to the people that need them. I think they’re non-profits but a quick seach couldn’t confirm that.
So if they take away that business model I guess the EU needs to subsidise the organisations, otherwise there will be no more norms. That might be a better solution all around but I’m not sure the EU is prepared for it.
Re: Re: Subsidies
It might help to read before commenting.
One of the central points of the AG opinion is that the European Commission already funds most of the work, while sales revenue is almost non-existent. In USA terms you might say the standards are basically work for hire of the government.
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62021CC0588
Re:
Testing laboratories do not run the development of Standards, that would be a conflict of interest and incentivise some really bad behavior.
Many states host their laws online. So you could simply go there, download all 700 scanned (!) Pages of the NEC and print it out. It appears many have stopped this practice now that’s it’s free online.
Idaho for one was a place I went to download it from occasionally. But I can’t be bothered now that the NFPA makes it freely available for personal use.
Re:
According to the NPFA, you’re not allowed to print that out. Anyway, it’s even easier to search for “National Electrical Code” on Library Genesis (for which Wikipedia’s always got a list of working addresses) to get a PDF. And some of the pre-2020 copies are proper electronic versions rather than scanned ones. The number of pages is about 900 now.
“Personal use” should not be considered sufficient for technical standards. And keep in mind that if you can’t easily get a standard, the people in foreign countries making products for export might not be able to either. At one job, a boss once said something to us like “you know, the company has an ISO account, so we could get a copy of the real standard instead of you guys always referring to the freely available draft”. But they would’ve had to order that for each person, ’cause each copy would be separately watermarked and forbidden to be shared, which would’ve been a pain in the ass: probably several times a year some intern or recent hire would realize they lack the document we’re talking about, and then they’d be unable to follow the discussions till the purchase worked its way through our bureaucracy. So it never happened, not that I wanted them to financially support this standards-lockup bullshit anyway. Let’s hope there was no “whammy” added between the last public draft and the final version.
Remember all those studies showing that scientific papers that aren’t freely available (officially or on Sci-Hub) just aren’t cited as much as ones that are? Same thing; the above story isn’t particular to that one company, but occurs everywhere. People are working from drafts, old versions, summaries, and rumors.