What are the consequences that European standards being cited in law must be publicly accessible, but are protected by copyright?

Question

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?

Answer 1

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.

Answer 2

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.

Answer 3

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.

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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).