Access to Private Standards Incorporated Into Law

From time to time governments make law by referring to non-governmental rules. These are often technical matters on which standards are developed by outside experts. For example, a regulation might require manufacturers to comply with a safety standard of the Canadian General Standards Board or the International Standards Organization.

When this happens, should the government have to ensure that the outside standards be accessible to those affected by them? Many standards bodies finance their operation at least in part through the sale of their standards. In other words, access to the text of the standards is not free. Is that a problem for access to law in a democracy?

Ontario’s Legislation Act says this (section 62):

Access to incorporated document and earlier versions

(4) When a document is incorporated by reference as described in subsection (1), the Minister responsible for the administration of the Act under which the regulation is made shall take steps to ensure that,

(a) the incorporated document is readily available to the public, on and after the day the regulation or amending regulation containing the reference is filed under Part III (Regulations); and

(b) the incorporated document and any earlier versions of it that were previously incorporated into the regulation or into a predecessor of the regulation remain readily available to the public.

The American Bar Association recently debated this topic, and resolved that private texts incorporated into law should be made accessible to the public, in a ‘read-only’ version. This resolution was controversial from both sides: whose who thought that it did not respect the intellectual property of the standards developers, and those who thought that ‘read-only’ was not good enough, since it prevented searching, copying and republishing – thus impairing discussion of the law.

Should we have stronger rules in Canada about this? Is Ontario’s rule (which has no equivalent elsewhere in the country, so far as I know) sufficient, or too difficult?

Comments

  1. I think it would be helpful if the Copyright Act did not give copyright protection to works that are written for legal purposes like legislation, regulations, guidelines, policies, legal submissions and legal decisions.

    Copyright is meant to reward to reward creators so they are encouraged to create works of creativity and invention. This reward is not necessary for legal documents.

  2. There’s apparently ongoing litigation with the CSA taking a position that telling people how to comply with Ontario law and do safe electrical installations (the Ontario law incorporates a modified CSA Canadian Electrical Code) infringes CSA rights (website is not written by a lawyer and there is a lengthy history but I found it interesting):

    http://www.restorecsa.com/

    I strongly feel, on principle, that it is unfair to require people to comply with laws that they may have to spend hundreds of dollars (or more) to get access to, especially given the unfairness/inequality of bargaining positions, it’s not like if you think the short standard incorporated into law is overpriced at $1000 you can shop around for another! If the government wants to save time and money by incorporating a standard, it can pay the copyright owner and negotiate pricing (e.g. if the CSA price is too high for a standard dealing with something, go to the UL or IEC). Laws and regulations should be freely available to the public.

    There’s also the aspect that the standard writers want the standards to be adopted and incorporated into law, giving them a monopoly on telling people how to comply with the law. It would be analogous to an industry lobbyist asking for a particular law, then asserting copyright in said law and prohibiting publishing it without permission, while still expecting the public to be forced to comply with the law.

    What happens when, say, a householder violates the law by how they wire their own house, someone is injured or killed, and they take a position in court that charges should be stayed because the ESA charges hundreds of dollars for a copy of the electrical code (a modified Ontario-specific version of the CSA’s Canadian Electrical Code, only the modifications are freely available, not the underlying standard) rather than making it freely available?

    https://www.esasafe.com/contractors/the-ontario-electrical-safety-code

  3. There was a recent judgment in the Federal Court concerning this very issue. The Court held that there was an infringement of copyright by the defendant in the Canadian Standards Association Electrical Code, which “has been incorporated by reference in the laws of most, if not all, provinces”. See Canadian Standards Association v. P.S. Knight Co. Ltd., 2016 FC 294 (CanLII),

    The substantive judgment and the costs judgment are both being appealed. Here are the dockets:

    http://bit.ly/2b0Xgwg

    http://bit.ly/2b0X0NC

  4. Responding to Howard, the T-646 decision that he references was not restricted to the Electrical Code. Rather, the Court ruled that all text externally drafted (i.e. by non-government employees) is privately owned. Specifically, the Court ruled that the crown does not own copyright in legislation. As most legislation is contributed to by external parties (various lobbyists, for example), the vast majority of legislation is now privately owned. As with all private property, you’re not allowed to use it in any way without permission of the owner. Detail: http://www.restorecsa.com/news/article/private-law-arrives

  5. The Federal Court in the P.S. Knight v CSA case cited by Howard and referred to by Gord found that as between the CSA and a private publisher, the CSA held copyright in the Canadian Electrical Code.

    The CSA Code has been incorporated by reference into regulations under electrical standards legislation across the country.

    The Crown holds copyright in its own legislation and regulations, i.e. what is drafted by it. The source of what it drafts and enacts directly is not relevant. Most Canadian jurisdictions now permit the free use and republication of their statutes and regulations.

    The point of the original post was to question the status of texts of private or non-governmental bodies, such as the CSA. when those texts are given force of law by government action (usually incorporation by reference into a regulation). If they are subject to copyright by the bodies that publish them, is that an impediment to citizens’ access to the laws that bind them, and if so, is that desirable?

    Both the Ontario statute quoted above and the ABA resolution aim to deal with this issue. Do they do so adequately? The Ontario law says that the minister “shall take steps to ensure” that the text is available. It does not say that the minister shall ensure that the text is available, or that it should be available for free. Is that good enough?

    The ABA resolution says that incorporated texts with legislative weight should be accessible for free, but they may be subject to read-only rules (enforced, as the BoingBoing article points out, by technical protection measures). The publishers of standards objected to this resolution; access-to-law advocates objected to the restrictions.

    Canada has no equivalent, except Ontario’s hortatory provision. Should we do more?

  6. I don’t think Ontario law does so adequately because at least in practice, charging hundreds of dollars is still publicly available.

    If the Highway Traffic Act were publicly available – but only at a cost of $200 – to the public, because it incorporated by reference a standard, would it be fair to expect compliance from drivers and to deem the public to be aware of what it said? Would someone publishing a guide on how to be a safe driver in Ontario be sued for violating copyright in the driving standard?

    Re the electrical code, Ontario Reg. 164/99 which is so brief I’ll quote it in full:

    “1. The code issued by the Canadian Standards Association entitled “Canadian Electrical Code Part I, C22.1-15”, as amended by the document entitled “Ontario Amendments to the Canadian Electrical Code Part I, C22.1-15”, dated June 15, 2015 and issued by the Electrical Safety Authority, are together adopted as the Electrical Safety Code. O. Reg. 319/15, s. 1.

    2. Every act or omission in connection with the generation, transmission, distribution, retail or use of electricity in Ontario must be done or made in compliance with the Electrical Safety Code. O. Reg. 164/99, s. 2.

    3. The Electrical Safety Authority shall ensure that an adequate supply of copies of the Electrical Safety Code is made available to the public. O. Reg. 164/99, s. 3.”

    The ESA ensures adequate copies are made available to the public by charging $195 per PDF, $219 for a hard copy per the link in my prior reply. And unlike some standards incorporated by reference, it’s relevant to the general public at least those who may do electrical work in their own homes (replacing a light switch?), and guides to how to comply with the code are of benefit in helping the public comply (which is important not only legally but for safety purposes).

  7. My practice occasional requires reference to CSA standards.

    I get them from the public library, or the courthouse library. For free.

    Does accessible mean “accessible from my keyboard for free without even standing up”.

    Are we suggesting that going to a physical library (either a law library or a public library) is too onerous to be considered “available to the public”?

    Requiring someone to go to a library to get a document doesn’t bother me in the least.

  8. @Mike
    If laws generally – including both Federal like the Criminal Code and Provincial like the HTA – were removed from the Internet and only available at (some) public libraries, or by paying hundreds or thousands of dollars per law, or by subscribing to a database service costing thousands, would you think that’s okay?

    Even if it were (I disagree), if you’re not in a place with one of the 48 courthouse libraries, and your public library (if any) has none, are you expected to drive to a large city, taking a day off work, to view the laws which are “available to the public”? Would you think that’s “available to the public” giving that term a purposive interpretation of wanting the public to have ready access to laws with punishments for non-compliance?

    And that’s leaving aside issues of people with disabilities, numbers of copies (e.g. Toronto 18 for millions of residents and buildings subject to code, Thunder Bay zero copies newer than 2012?) and that it’s libraries paying for copies, not the government providing copies for free.

  9. We’re not talking about laws generally, we’re not talking about the Highway Traffic Act, we’re talking about safety codes.

    The safety codes are designed and written for professionals in the field, not for the average person. They’re not a beginners manual on how to change a light switch.

    In my view they’re accessible enough for the intended users.

  10. @Mike,
    No, we’re talking about laws and regulations; and for the electrical code, intended to increase public safety.

    But assuming being aimed at professionals makes a difference, would you be content if e.g. LSUC charged everyone (including lawyers and paralegals and any member of the public who was interested) $1500 for copies of the Rules of Professional Conduct and $500 for each bylaw? With new copies needing to be purchased whenever revised, of course. Because it’s aimed at professionals. And members of the public who want to look up what their lawyer or paralegal has to comply with have to pay $1500 or go to a public library in a large city, because their town doesn’t have a copy. That would rightly be criticized as contrary to principles of access to justice.

    We obviously disagree over whether non-electricians would be interested in the electrical code or guides on how to comply with it, I think it’s of much broader interest given the number of handymen/women who do work in their own homes, at least in terms of having derivative works that help people comply if doing work themselves.

  11. Speaking as a layman (non-lawyer) I have been following this case for a long time. A few points from my perspective:

    1. Any argument that starts with the premise that access to the text of laws is adequate if designated “professionals” have some access is deeply discriminatory to the citizen / taxpayer that is paying for this whole thing. I have used PS Knight’s books for years in wiring multiple homes etc. They have been a cost effective and accurate description of the code. Why should the average citizen be denied access to laws and related regulations and standards by high fees (e.g. pay $’00’s for code to install $25 light fixture)?

    2. Such restrictions then become part of government imposed restrictions on citizens ability to do things for themselves and support monopoly or oligopoly positions for “professionals” and manufacturers. On this basis of this, the rent seeking (as the economists say) of these parties is abetted by the government to the detriment of the consumer.

    3. There are two more general principles at stake here:

    (a) Laws should be the property of the state, representing the people, period. If outside help is required, pay for it and obtain permanent IP rights to what is required or hire individuals to do the work directly. Any other approach is both undemocratic and sets up private interests to milk both the citizens and the state on an ongoing basis.

    (b) One of real issues underlying this case is the desire of the “non-profit” CSA to inflate its income through monopoly control. The general principle of the state chartering third-parties, supposedly non-profit or not, to perform what are essentially state functions, needs to stop. It inevitably leads to capture of the organization by its management and mis-use of the monopoly position to line the pockets of said managers.

    BTW: Mike’s casual dismissal of the “average person” above is more than a bit insulting. House wiring, for example, is not that hard — any “average” person can figure out the basics pretty quick and availability of codes should not impede them.

  12. I don’t mean to be insulting. I mean that the electrical code is not a manual for installing light switches. I agree that house wiring is not very hard and the average person should be able to figure it out, but they will get a lot further with a good youtube video or a library book than they will with the electrical code.

    Let me put it another way: if you had to screw, mud and tape a drywall partition, would you look at the building code?

Leave a Reply

(Your email address will not be published or distributed)