18

In a jugdgment published this week, the Court of Justice of the European Union ruled on a complaint that some technical norms set as European Standards by a Standards Organisation are available only behind a paywall, despite them being cited by European law.

The European Comission had denied to grant the applicants free access to these documents, citing Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents, which in Article 4 defines exeptions. Paragraph 2, first indent lists cases "where disclosure would undermine the protection of commercial interests of a natural or legal person, including intellectual property...unless there is an overriding public interest in disclosure."

The Commission maintained the private interests overrode the public one. The complainants appealed against this decision on two grounds: first, they disputed that the standard texts in question were protected by copyright, and second, they upheld that there was an overriding interest of the public in reading the documents.

The Court, overthrowing an earlier decision in an appeals procedure, acknowledged the second reason for the appeal:

(80) In the light of the foregoing considerations, it must be held...that the requested harmonised standards form part of EU law.

(81) In the second place, as the Advocate General noted in point 52 of her Opinion, Article 2 TEU provides that the European Union is based on the principle of the rule of law, which requires free access to EU law for all natural or legal persons of the European Union, and that individuals must be able to ascertain unequivocally what their rights and obligations are... That free access must in particular enable any person whom legislation seeks to protect to verify, within the limits permitted by law, that the persons to whom the rules laid down by that law are addressed actually comply with those rules.

(82) Accordingly, by the effects conferred on it by EU legislation, a harmonised standard may specify the rights conferred on individuals as well as their obligations and those specifications may be necessary for them to verify whether a given product or service actually complies with the requirements of such legislation.

...

(85) In those circumstances, it must be held that there is an overriding public interest, within the meaning of the last clause of Article 4(2) of Regulation No 1049/2001, justifying the disclosure of the requested harmonised standards.

But it did not rule on the first reason:

(87) Consequently, the second ground of appeal must be upheld and, without it being necessary to examine the first ground of appeal, the judgment under appeal must be set aside.

In a press report on the judgement, the commentator there speculated that this ruling meant the court might not opose the opinion that the standard texts are still protected by copyright, only that the right to commercial exploitation had to stand aside. (Translated with DeepL.com)

However, the Luxembourg judgement remains...short-spoken on the issue of copyright protection. In the first instance, the Commission and the General Court had rejected the arguments...that, on the one hand, the quality of the work was lacking, that the organisations themselves were not "authors" and that, in any case, copyright had to take second place to the public's right of access to the law.

While the press office of the ECJ refers once again to copyright as a possible exception to the right of access in its press release on today's judgement, the court does not comment on this in the judgement itself, and how the supreme court's decision on this issue is interpreted could be decisive for its further impact.

Even if the ruling describes harmonising technical standards once and for all as part of Union law and their creation as a "delegated act": It is possible that the European and national standardisation organisations see a small window for a new lawsuit here. Following the Advocate General's recommendations last summer, DIN warned that the existing and well-functioning European standardisation process would be jeopardised by such a ruling.

What could such a reasoning look like? Is there a realistic way for Standards Organisations to weasel out of this and still hide the texts of standards behind a paywall?

6
  • 1
    I'd add that a similar situation has long existed for standards from ISO etc. which, unlike for example the IEEE, has similar governmental entanglements. Mar 8 at 10:41
  • @MarkMorganLloyd A long time ago the government owned the ISO standards... They were free to use, and the government spent about 1 milllion a year to maintain them... Then someone decided that was to expensive... gave it to a private organization. Now you have to pay to access them, and the government is spending countless millions a year because of that paywall...
    – Questor
    Mar 8 at 17:39
  • 4
    @Questor I don't know which organisation you are referring to, and which government, but the International Organization for Standardization is, and always was, a federation of national standardization agencies.
    – ccprog
    Mar 8 at 17:53
  • 3
    @Questor "citation required". First, the ISO is an /international/ body... which government are you referring to? Second, while it might be true that the text of a standard was originally written by a government body- for example FIPS in the USA- the fact that it was later assigned to ISO doesn't affect the independence of the ISO itself; the same applies to e.g. ECMA elsewhere. Mar 8 at 18:02
  • Regarding, "the commentator there speculated that this ruling meant the court might be of the opinion that the standard texts are still protected by copyright" -- the commentator's speculation is at best poorly expressed. Having declined to rule on it or even examine it, the Court does not have an opinion on that question. No speculation required. Mar 9 at 18:35

3 Answers 3

21

The judgement is of no effect on the Standards Organisation

They were not a party to the case and any ruling it makes does not affect them. The obligation to make the standard(s) available is on the EU, not the publisher.

The EU has several options:

  1. They can negotiate a licence for what I imagine will be a substantial fee, enabling universal access. That licence could reasonably limit copying and ban derivative works etc. if they aren’t necessary to meet the courts judgement.
  2. They could compulsorily acquire the IP, paying whatever value the law requires for that. Or the standards organisation itself.
  3. They could stop referencing standards in legislation.
  4. They could change copyright law to disallow copyright on standards or require a compulsory free licence. Depending on local laws, this may be a “taking” and, even if it isn’t, it will likely have a chilling effect on the publication of new standards given that sales of licences are how the organisation funds its operations.
1
  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on Law Meta, or in Law Chat. Comments continuing discussion may be removed.
    – Dale M
    Mar 8 at 21:58
5

Is there a realistic way for Standards Organisations to weasel out of this and still hide the texts of standards behind a paywall?

The way that I could see this playing out is

  • A free of charge version of the relevant standards is provided on a web-portal with registration. This version consists of pictures of the standard's pages of a quality that is good enough for humans to read but that makes OCR tricky (thus, not searchable). Every copy is watermarked and has a license that disallows further copying.
  • The current high-quality, searchable version remains available for a fee and with the current license terms.

If a later court ruling finds that these standards are not protected by copyright law, the watermarking and restrictive license on the free-of-charge version could be dropped, but it would presumably remain a low-quality version.

3
  • 16
    I am doubtful that there exists much of a realm anymore, where humans can reasonably read the text but the text is protected against machine reading. Computers are getting dang good at OCR & the like Mar 8 at 3:44
  • 23
    Publishing it as images only with the intent of making it not searchable is asking for lawsuits by anti-discrimination organisations. Increasingly, laws or regulations mandate that government publications should be barrier-free for people with vision-related disabilities, and this would do the exact opposite.
    – gerrit
    Mar 8 at 7:37
  • Bart's answer largely reflects traditional usage: just about anybody could get access to "informal copies" of the standards, but any organisation which wanted to use them for design/production purposes would need to maintain "controlled copies" which they had purchased together with a subscription for updates: demonstrating compliance with this was a prerequisite for e.g. ISO-9001. In effect, this dovetails into discussion of open source software etc.: the originator or his nominee retains copyright, and grants licenses under various terms of supply. Mar 9 at 13:07
5

Is there a realistic way for Standards Organisations to weasel out of this

As @DaleM has already pointed out, it's rather a question of legislation weaseling out.

However, for Germany, according to the DIN there exist about 90 so-called Standards Infopoints where "The DIN norms and standards are generally available on screen in electronic form." [automatically translated from https://www.din.de/de/service-fuer-anwender/normen-infopoints]

Whether that meets the requirements for public access of legally relevant texts is IMHO questionable:

  • For what I know, the general public (as opposed to members of the university) typically only has in-person access at reading terminals
    • and I'm not sure a reading terminal some 70 - 100 km away nowadays meets accessibility criteria for binding regulation
    • the more so, as the "product or service" to check against the standard may not be brought into the library reading room
    • (Last time when I worked at such a reading terminal - admittedly long ago - it did not allow saving files. Printing parts was allowed at substantial per-page fees)
  • Also, the respective library closest to where I am lists the standards data base with access for university members only.

But it certainly offers an opportunity to claim that the general public already has access and wait whether anyone brings this to court.


off-topic (since politics rather than legal):

As for the DIN's well functioning standardisation process I can only say that I heard (rumour-level) at my professional society people saying that they/their employers stopped even considering to work with DIN since nowadays in order to be allowed to volunteer time and expertise working on a standard, you have to pay a fee to DIN (but in turn get a discount on the fee for the final norm).

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .