Do you lose your copyright if your work becomes part of a law? ASTM v. PUBLIC RESOURCE

A copyright is a set of exclusive rights granted to someone that creates an original work of authorship. Even though United States copyright law uses the word author, that word includes many other creative occupations like painters, sculptors, photographers, musicians and software writers. An original work of authorship is something created by one of these creative occupations. An author can register their copyright with the library of congress to strengthen the rights associated with the copyright, but registration is not required for the author to be granted a copyright to their work. Copyright grants an author the exclusive right to reproduce, distribute, perform, display, transmit and make derivative works based on the original. If someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement. A copyright owner can file a lawsuit for an injunction to stop copyright infringement and to get monetary damages for copyright infringement which has occurred.

The exclusive rights granted to a copyright owner are not unlimited. Fair use is an element of copyright law that excuses a defendant from liability for copyright infringement. The reason that fair use exists is that copyright law is intended to promote the advancement of the arts and sciences, a fair use of copyrighted matter is a use that promotes advances. The four factors judges considers in a fair use defense are: (1) the purpose and character of your use (2) the nature of the copyrighted work (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market.

Even though the United States government grants copyrights, the government does not retain copyright to its own works. A work of the United States government, as defined by the United States copyright law, is “a work prepared by an officer or employee” of the federal government “as part of that person’s official duties.” In general, under section 105 of the Copyright Act, such works are not entitled to domestic copyright protection under U.S. law and are therefore in the public domain.

The United States government has a diverse array of laws and regulations. Changing those laws and regulations can be time consuming. When the government wishes to regulate and industry, frequently standard industry definitions are incorporated into the regulations. Things like fire code, electrical code, and building standards are defined by groups of industry experts that define best industry practices. These industry groups are entitled to copyright protection when they create a book of standards. The question then becomes, when a government regulation cites an set of industry standards developed by a private party, is it fair use to republish those standards?

AMERICAN SOCIETY FOR TESTING MATERIALS v. PUBLIC.RESOURCE.ORG INC., 13-CV-01215 (D. DC 2017) is a case which answers this question.

Plaintiffs own copyrights to various industry standard definitions, which are developed by numerous subject matter experts under guidance from the plaintiffs. Plaintiffs sell hard copies of their standards for between $25 to $200 and the ASTM plaintiffs also sell digital versions and make their standards available for free online in “read-only” mode. This case revolves around 257 of the ASTM plaintiffs’ standards as well as a collection of the AERA plaintiffs’ standards referred to as the “1999 Standards.” These standards were incorporated by reference into federal law, and thus were available to the public.

Defendant purchased physical copies of plaintiffs’ standards and, without authorization, scanned and made digital, verbatim, copies freely available online to the public. Plaintiff sued for copyright infringement. Defendant first claimed that Plaintiff did not have a valid copyright because the standards were part of Federal Regulations. The district court held that Plaintiff owned valid copyrights over the standards at issue, and that the copyrights were
not stripped upon the incorporation by reference into federal regulations. Defendant then claimed that its use of the standards was a fair use.

The district court reviewed each of the fair use factors in turn and ultimately concluded that fair use did not apply. The district court found that copying the Plaintiffs material without commentary or analysis was not transformative and even though the copies were offered for free, Defendant’s copies competed with the Plaintiff. With respect to the nature of the work, the court found that technical scientific concepts and guidelines are at the core of what copyright law intended to protect. The amount of the work copied weighed against fair use because the Defendant republished Plaintiff’s entire work. With respect to the potential market for the work, the court found against fair use because Defendant was offering Plaintiff’s works for free, which destroyed Plaintiff’s market. Because all factors weighed against fair use the court issued a permanent injunction against the Defendant.

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