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EFF legal intern Alissa Johnson contributed to this blog post.
Earlier this month, the Court of Justice of the European Union ruled that the harmonized standards are part of EU law and must therefore be freely accessible to EU nationals and residents.
It may seem like common sense that the laws that govern us should be freely accessible, but this issue has been debated in the EU for the past five years and in the US for more than a decade. At the heart of this debate are technical standards developed by private organizations and later incorporated into law. Standards development organizations have been able to restrict access to these incorporated standards through copyright claims before they are challenged in court. Regulated parties and stakeholders checking compliance with technical and safety standards have had to purchase these standards from private organizations, often at great expense. While free alternatives were sometimes available, such as unique online “reading rooms,” these options had their own significant drawbacks, such as limited functionality and privacy concerns.
In 2018, two non-profit organizations, Public.Resource.Org and Right to Know, asked the European Commission for access to four harmonized standards for toy safety, standards that apply across the European Union. . The European Commission refused to grant access on the basis that the standards were protected by copyright.
The non-profit organization then filed a lawsuit with the General Court of the European Union seeking to have the European Commission’s decision revoked. They mainly made two arguments. Firstly, copyright cannot be applied to harmonized standards and open access to standards does not harm the commercial interests of the European Committee for Standardization or other standard-setting bodies. Second, they argued that the public interest in open access to the law should override any existing copyright interests. The General Court held that the standard of originality for the work to be subject to copyright protection was met, that the sale of standards was an important part of the standards organization’s business model, and that it ensured the proper functioning of the standards organization. It found that it was in the public interest and rejected both claims. The European standardization system outweighed their interest in free access to harmonized standards.
Last week, the EU Court of Justice overturned the General Court’s ruling, ruling that EU nationals and residents have an overriding interest in free access to the laws that govern them. Article 15(3) of the Treaty on the Functioning of the European Union and Article 42 of the Charter of Fundamental Rights of the European Union guarantee the right to access the documents of EU institutions, bodies, offices and agencies. These institutions can deny access to documents whose disclosure would undermine the protection of commercial interests, including intellectual property. Unless there is a public interest that overrides disclosure..
Thanks to the ECJ’s judgment, the standards developed by private companies have been incorporated into law and now form part of EU law. Users need access to these standards to determine their own compliance. Compliance with uniform standards is generally not mandatory, but in the case of the toy safety standards at issue here, it is. Even if compliance is not mandatory, products that meet technical standards can benefit from a “presumption of compliance” and non-compliance can result in significant administrative difficulties and additional costs. there is.
Given that harmonized standards are part of EU law, nationals and residents of member states have an interest in free access, disregarding potential copyright concerns. Free access is necessary to enable economic actors to “clearly ascertain what their rights and obligations are” and to enable concerned citizens to investigate compliance. As the U.S. Supreme Court pointed out, In 2020, “[e]Most citizens are presumed to know the law, and there is no need for argument to show that everyone should have free access to the law.
The Court of Justice’s decision has far-reaching implications beyond the four toy safety standards at issue. That reasoning for classifying these standards as EU law applies more broadly to standards incorporated into legislation. Building on this precedent, we are pleased that standards development organizations in the EU will be required to disclose their standards on request, rather than locking important parts of the law behind a paywall.
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