Should Standards Developers be allowed to Copyright Their Work?

Although upon reflection it may appear obvious, most Americans do not spend their days considering how it is possible that their CDs work just as well in their home’s BOSE sound system as they do in their Sony car player, or how different company’s light bulbs fit into all of their lamps, or why different trains can all ride on the same rails. However, these seemingly simple everyday functions would be frustratingly complicated if every manufacturer did everything their own way. These commonplace activities are all possible because at one point, someone developed a laser, thread diameter, and track width that made interchangeability and wide-spread use possible. In short, these items were standardized. The list of things that fall into this category of standardized items or processes is almost infinite, but critical to the manufacturers that each standard impacts. Standards are beneficial to groups beside manufacturers as well. Although those who utilize the processes and methods of manufacturing goods are impacted, standards are also important to local and federal governments, trade groups and consumers among others. Many standards are directly adopted by governments for their codes. Trade and industry groups lean on standards to ensure that competition can thrive domestically and globally in their sectors. And every American has benefitted from building, fire safety, and automotive safety standards developed by the industries in question. Who develops these standards? Is it the government? Is it individuals? Corporations? The answer is, in fact, all of the above. However, many of the innovations occurring in standards today come directly from those who are impacted most greatly; members of the industries who utilize them. And, the members of industry who create these standards are typically corporate members of standardization bodies. A debate has been borne from this particular set of circumstances regarding whether or not these standards should be copyrightable, and therefore afforded monopoly protection. In other words, should the firms and standards bodies who develop standards be able to copyright said standards and sell them to other members in the industry, or should they be available in the public domain? In a similar vein, should standards that are adopted as part of local safety or public building codes lose their protections as they have become part of the public domain? There are economic incentives in both situations. If standards are afforded copyright protection, standards developers are given greater incentives to create them. Profits from sharing of standards could arguably be used to update standards and develop new ones. This could benefit everyone. However, there are cases where innovation is greater when standards are shared by all, such as with internet code. The lack of clear economic answers in this situation makes for difficult analysis. The Supreme Court has not made finding answers any easier, having never addressed the copyright privileges of standards developers. However, the majority of case law points to the wariness of judges to afford protections to standards. [i] Standards organizations clearly have an interest in changing court’s minds. [ii] However, for now, it does seem that when push comes to shove, firms will have to continue to innovate standards without the clear knowledge that they will be able to profit off of them. [i] See, http://people.ischool.berkeley.edu/~pam/papers/BC%20questioning%20standards.pdf for an excellent discussion of the case history surrounding protections for standards and compelling arguments about why they should not be allowed. [ii] See, http://publicaa.ansi.org/sites/apdl/Documents/ANSI%20Position%20on%20Protection%20of%20Copyright%20for%20Standards%20Referenced%20into%20Public%20Law/Veeck_v_Souther_Code_Congress_intl_inc-Amicus_Curiae.pdf for an amicus brief which clearly states the arguments in favor of copyright protections for standards.