Questioning Copyright in Standards
The rise of the information economy has caused copyright law to become a new actor in the intellectual property rights and standards debate because standard-setting organizations (SSOs) increasingly claim copyrights in standards and charge substantial fees for access to and rights to use standards such as International Organization for Standardization (ISO) country, currency, and language codes and standard medical and dental procedure codes promulgated by the American Medical Association (AMA) and the American Dental Association (ADA). This article will consider whether standards such as these, especially those whose use is mandated by government rules, should be eligible for copyright protection as a matter of U.S. copyright law. Part I reviews several lawsuits that have challenged copyrights in numbering systems devised to enable efficient communication and will argue that the decisions upholding copyrights in the AMA and ADA codes were incorrectly decided in light of past and subsequent caselaw, the statutory exclusion of systems from copyright, and various policy considerations. Part II considers copyright caselaw and policies that have persuaded courts to exclude standards from the scope of copyright protection under the scenes a faire and merger of idea and expression doctrines. It also considers whether government mandates to use certain standards should affect the ability to claim copyright in those standards. Part III assesses whether SSOs need copyright incentives to develop and maintain industry standards they promulgate and whether arguments based on incentives should prevail over other considerations. It will also identify some competition and other public policy concerns about allowing private entities to own standards, particularly those whose use is required by law.