In a recent decision, dated September 12, 2023, the U.S. Court of Appeals for the DC Circuit, in American Society for Testing and Materials v. Public.Resource.Org, Inc., determined that, in the particular factual circumstance presented in that case, the non-commercial dissemination of the standards-at-issue that were incorporated by reference (“IBR’d”) into federal regulations by a non-profit group constituted “fair use” under the copyright laws. That decision is not binding in any jurisdiction outside the District of Columbia and may be subject to reconsideration by the DC Circuit or review by the U.S. Supreme Court.
In ANSI’s view, the decision is narrowly drafted and applies only to the situation that was before the Court. The decision does not invalidate copyright in IBR’d standards or change the policy that directs all federal agencies, when seeking to incorporate a standard by reference, to “observe and protect the rights of the copyright holder.” (OMB Circular A-119, 81 Fed. Reg. 4573, 4673-4674 Jan. 27, 2016 and https://www.whitehouse.gov/wp-content/uploads/2020/07/revised_circular_a-119_as_of_1_22.pdf).
ANSI will be hosting a legal issues forum on October 12, 2023, to discuss the DC Circuit Court decision with experts and government representatives. If you are interested in attending, please register using the link provided.