Incorporation by Reference (IBR) News

The issue of Incorporation by Reference (IBR) of standards into the U.S. Code of Federal Regulations (CFRs) has generated a number of copyright issues.  Now with a recent ruling by the U.S. District Court for the District of Columbia, some clarity has been offered.

At issue is the very concept of copyright for standards documents referenced in U.S. regulations.  There has been an on-going debate about copyright in these instances.  Should IBR standards be freely available or should the rights of the copyright holder (the standards developer) be upheld?

On one side of this debate stands an organization called, Inc. which has been posting IBR standards on the Internet.  Challenging the “freely available standards” stance, ASTM International, ASHRAE (the American Society of Heating, Refrigerating and Air-Conditioning Engineers) and NFPA (the National Fire Protection Association Inc.) are on the other.  The battleground was a lawsuit brought by these Standards Developers (SDOs) against Public Resource for posting standards without permission and without compensation.

Last week, the court ruled in favor of the SDOs.  This means that IBR does not move referenced standards into the public domain.  Copyright protection continues to be in force.  This may mean free “read-only” access or it may mean the standards need to be purchased.  Each SDO continues to be the decision maker with regards to distribution.

Why is this considered a victory by SDOs?  Sale of publications in many cases is a significant part of the funding for these non-profit organizations.  IBR standards can be some of the most frequently used documents in their catalogs.  The potential lost revenue represents a legitimate challenge to the way standardization is funded.  As ANSI (the American National Standards Institute) notes, “The ruling supports ANSI members and the standards ecosystem, and enables the plaintiffs to continue to develop high-quality voluntary consensus standards that support federal, state, and local agencies.”

The standards community as a whole is grateful to these three associations for taking on the legal challenge presented by Public Resource and others of its kind.  Copyright protection requires constant vigilance.  However, many associations do not have the funds available to take on such a case.  Leadership by ASTM, ASHRAE and NFPA has been a boon to the community as a whole.

Standards are included in our regulations as best-practice solutions for health, safety, and quality requirements.  Having the two systems work in harmony is essential — one being the voluntary standards system and the other the regulatory framework for the enforcement of our laws.  I expect this ruling to provide the legal precedence needed for creating a stable legal footing regarding copyright and IBR for the standards developing community.