Rulemaking process raises copyright concerns

When federal agencies write regulations, they are directed under a 1995 law to use voluntary consensus standards developed by industry whenever possible rather than to develop new ones to accomplish the same goal.

Those standards are then typically “incorporated by reference” into federal rulemaking official documents. That means the standards are cited by name, originating body, and date of release, rather than being published in full.

The industry groups that produce such standards often have a copyright on the documents and charge a fee for access. But now the Administrative Conference of the United States, a federal advisory committee, is reexamining the “incorporation by reference” practices and has recommended some changes. Meanwhile, several transparency groups claim the changes do not go far enough in ensuring enough public access to regulatory information.

The Administrative Conference began examining the practices earlier this year because of concerns about whether they allow the public adequate access to all regulatory materials, including copyrighted materials, and whether federal agencies are able to keep the referenced standards up to date. That can be difficult when standards are being updated by nongovernment groups.

In recent weeks, the conference members developed several recommendations that aim to give federal agencies more guidance on best practices for incorporation by reference. The conference adopted several of those proposals on Dec. 9.

“Specific challenges addressed include updating regulations that incorporate extrinsic materials by reference, ensuring access to referenced materials, addressing copyright issues that may arise, and finding ways to improve procedures for approving and managing regulations that incorporate other materials by reference,” the conference said in a statement on its website describing the project.

The public access issue is complicated because in many cases, standards development organizations typically charge a fee for access to the full text of copyrighted materials. Legal scholars appear to disagree on whether federal agencies, or individuals, should pay the fee or not.

Industry groups appear to support the fees.

“The American National Standards Institute (ANSI) is often asked about ‘Why (do) standards-development organizations charge for standards at all," ANSI said in a statement. "The answer is that every standard is a work of authorship and, under U.S. and international law, is copyright protected, giving the owner certain rights of control and remuneration that cannot be taken away without just compensation. In addition, there are many costs associated with developing, maintaining, and distributing standards – all of which can be reflected in the price of a standard.”

On the other hand, the fees are viewed as hampering broader public access. Several transparency groups say the administrative conference apparently tried to strike a balance between improving transparency and honoring copyright protection but ended up leaning too far in favor of industry.

“While the recommendations of the ACUS report attempt to balance the scales of access to the law and encouragement of private standards development, the recommendations tip the balance too far in the wrong direction,” OpentheGovernment.org, a transparency watchdog group, said in a Dec. 13 news release.

“Fundamental principles of American democracy dictate that ‘citizens must have free access to the laws which govern them,’” Openthegovernment.org said. “Without agency policies that foster broad availability, incorporation of copyrighted materials permits copyright holders to serve as gatekeepers of public access to federal law.”

The group submitted comments to the administrative conference along with the Association of Research Libraries and the Electronic Frontier Foundation.