Last week I blogged about the petition by a group of academics led by Professor Peter Strauss regarding the availability of standards incorporated by reference in the Code of Federal Regulations (CFR’s). ANSI, as the umbrella organization for U.S. standards developers, has sent in a reply addressing a number of questions raised by NARA, the National Archives and Records Administration, the executive branch that oversees that part of the CFR addressed by the petition.
The first area of concern for NARA was the meaning of “reasonably available,” existing language in the circular which is at the center of the discussion. ANSI’s position is that the text of standards and associated documents should be available to all interested parties on a reasonable basis, which includes appropriate compensation as determined by each SDO (Standards Developing Organization).
ANSI brings up the fact that the accessibility of information on the Internet has not diminished the protections of copyright. They additionally note that online access has not “…changed the need and the ability of standards developers to cover the significant costs of creating the documents that are used to further public policy goals in law and rulemaking.”
ANSI also points out that requiring various agencies to purchase licenses for public access to standards incorporated into regulations would defeat the original intent of Circular A119, “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities.”
The ANSI response notes that if agencies subsidize the costs of certain standards by licensing, then “budgets will need to be substantially increased in order to pay such costs, either through taxes or additional interest on the national debt.” This is precisely the kind of costs that OMB Circular A119 intended to avoid!
Other areas of concern for NARA, and by extension for ANSI, are articulated in the recent Recommendation issued by the Administrative Conference of the United States. The ACUS recommendation addresses many of the issues raised by the academic’s petition.
ACUS, an independent agency of the Federal Government, provides suitable arrangements through which the various agencies may cooperatively study mutual problems, exchange information, and develop recommendations for action with regards to regulatory activities and other Federal responsibilities.
The recommendation suggests that agencies should work with the various SDO’s to promote (not mandate) free access to standards referenced in U.S. regulation. The Conference’s research revealed that some agencies have successfully worked with copyright owners to further the goals of both transparency and public-private collaboration.
For example, some agencies have secured permission to make a read-only copy of incorporated material available in the agency’s public, electronic docket during the pendency of the rulemaking proceeding relating to the material. In other cases, the copyright owner has made the material publicly available in read-only form on its own Web site. The ACUS recommendation therefore encourages agencies to take steps to promote the availability of incorporated materials within the framework of existing law.
The recommendation has a total of 18 line items to promote effective use of standards within the regulations of the U.S. Since this encourages increased availability but does not mandate free access, ANSI supports the adoption of the suggestions by NARA.
Document Center Inc. congratulates ANSI on an articulate and timely response to NARA’s request for comment. This is a subject that concerns both Standards Developers and Intellectual Property owners in general. Use of copyright material, patents, and so on in public documents requires a fine balancing act between the needs of society and the rights of the property owner.
The petition reminds us that the perception of access to standards and other copyright material can be improved. Document Center actively promotes new ways for the public to find and purchase the standards they need. Hopefully the suggestions of ACUS will encourage Federal Agencies and SDO’s to continue to work together to come up with innovative solutions to this complex problem as well.
