On September 12, 2023, the Court of Appeals for the District of Columbia issued its opinion in American Society for Testing and Materials (ASTM) v. Public.Resource.Org, Inc., holding that non-commercial use of standards incorporated by reference into law is fair use and not copyright infringement.
The ruling impacts the business models of industry standard-setting organizations like ASTM, which sets standards used in production and testing of a wide variety of products. Legislatures incorporate many of these standards by reference into laws and regulations. The standards-setting organizations may publish them for sale or make them available at no cost.
Copyright normally subsists in original works of authorship like these standards, but there are several exceptions, including the “government edicts doctrine.” In 2020, the U.S. Supreme Court decided the case Georgia v. Public.Resource.Org involving annotations to Georgia state law. The Supreme Court concluded copyright does not vest in works judges and legislators create pursuant to their judicial and legislative duties. It held the annotations not copyrightable even though an outside non-governmental entity, Lexis, had prepared them under the supervision and approval of Georgia legislators.
Public Resource later relied on the Georgia case as justification for copying and publishing industry standards incorporated into laws and regulations. The district court ruled last March that it was fair use under copyright law for the nonprofit to publish without permission the versions of the standards incorporated into law, and nominative fair use under trademark law to name the relevant organizations that authored the standards. However, the district court held Public Resource went too far by publishing portions of the standards not incorporated into law and by using the logo marks of the relevant organizations.