Incorporated by Reference

May 2, 2012

A few weeks ago, while listening to public radio’s “On the Media” program, I heard an interesting interview with Carl Malamud, of Public.Resource.Org. Mr. Malamud was discussing public standards created by private or industry organizations that have been incorporated by reference into the Code of Federal Regulations and other administrative codes. The conversation focused on the general unavailability of these standards to the public, and how you often must purchase the standards from the entity who drafted the particular standards, which can get expensive. Mr. Malamud’s argument is that if language is incorporated by reference into the administrative code, and enforceable as law, it should be publicly available, as it is no longer private property.

Mr. Malamud mentioned the 2002 Veeck case (49 F.Supp.2d 885), where a Texas web-developer purchased the Model Building Code (incorporated by reference into the Texas Building Code) and placed it online. That case went up to the 5th Circuit.  See 293 F.3d 791. The 5th Circuit found that while the Model Building Code might have had copyright protection as a Model Code,  it was no longer copyrightable once it was incorporated into the Texas Code.  This decision was specific to the Texas Building Code situation though, and does not necessarily extend to law incorporated into the Code of Federal Regulations. The Veeck decision has seen some serious criticism.  William Patry calls the decision “deeply flawed” and concludes:

Given the increasing tendency of government to adopt ready-made codes developed by private industry, there will likely be more such cases. So long as the public is not denied access (thereby eliminating any due process concerns), it will benefit from the lower costs made possible by private development. Copyright in such works should be upheld. Rules developed in the 19th century no longer fit the increased budgetary pressures on government and the wide dissemination made possible by the Internet. Private companies play a significant role in creating and disseminating a wide variety of materials used by government with the consent of those governments. Those creative efforts are deserving of protection, absent compelling evidence that the public is being denied access by virtue of the copyright. The desire of competitors to free-ride on the efforts of others has no bearing on whether access is, in fact, already present.

2 Patry on Copyright § 4:84
 
Patry also argues that, “the majority also brushed off a determinative statutory provision, 17 U.S.C.A. § 201(e).”

But, a fair number of Veeck’s 283 citing references continue to cite ‘broad policy considerations’ as reason for why standards should fall outside the copyright protection.  See for example, Pamula Samuelson’s,  Questioning Copyrights in Standards, 48 B.C. L. Rev. 193. 

Mr. Malamud’s organization has purchased a number of copyrighted standards that he intends to publish online to force the issue in regards to the CFR. PublicResource’s CodeCity is here.

ADDITIONAL RESEARCH REFERENCES

WestlawNext search in secondary sources:

veeck & private or industry standards incorporated by reference into regulation

Relevant results inlcude:

Lawrence A. Cunningham, Private Standards in Public Law: Copyright, Lawmaking and the Case of Accounting, 104 Mich. L. Rev. 291 (2005)

Katie M. Colendich, Who Owns “The Law”? The Effect on Copyrights When Privately-Authored Works Are Adopted or Enacted by Reference into Law, 78 Wash. L. Rev. 589 (2003)

Shubha Ghosh, Copyright as Privatization: The Case of Model Codes, 78 Tul. L. Rev. 653 (2004)