Questioning Copyright in Standards

Citation: Pamela Samuelson (2007) Questioning Copyright in Standards. Boston College Law Review (RSS)
Internet Archive Scholar (search for fulltext): Questioning Copyright in Standards
Download: http://ssrn.com/abstract=925044
Tagged:

Summary

Reviews caselaw upholding and not upholding copyrightability of numbering systems. Author argues "codes or other systematic organizations of information are certainly uncopyrightable if they are dictated by rules or functionality" or in following (quotes):

1. when the system is a useful art and copyright in it would give patent-like protection;
2. when second comers need to use the system to compete or communicate effectively;
3. when systematizing information is necessary to achieve efficiencies;
4. when the system is incidental to non-copyrightable transactions or processes; and
5. when systematizing the information will produces social benefits from uniformity and the social costs of diversity would be high

Also standards may be uncopyrightable per scenes a faire or merger doctrines, or become uncopyrightable (as law) when adopted by government.

Argues standard-setting organizations:

1. have incentives to develop standards for their fields without exclusivity
2. generally do not directly develop standards (done by professionals in field as volunteers)
3. use licensing fees to subsidize other activities, not to fund standards development
4. dissemination is cheap
5. can charge monopoly rents if standard is adopted
6. availability of which create perverse incentives to lobby for standards to be mandated, making public employees a sales force

Ongoing credibility of these organizations harmed by copyrightability of standards.

Theoretical and Practical Relevance

The argument about standard-setting organizations reminds one of academic publishers, particularly scholarly societies.