The Saga Of Copyrighted Standards: a Perspective on Access to Regulation

Abstract

Technical standards are a common example of rulemaking beyond the State. Especially in the newly emerging technology fields, standards abound and often take on a regulatory role. This chapter provides a perspective on access to regulation and the legitimacy of private rulemaking by studying the issue of public access to copyrighted standards that have become a part of law. To that end, it observes how copyrighted standards are addressed in the US and the EU, where the issue of standards’ access has recently been raised before the courts. Ultimately, it attempts to offer a non-exhaustive list of options that could facilitate balancing public and private interests in standardization. It concludes that most of these solutions are problematic due to the commercial nature and the funding mechanisms of standards bodies.