Private Standards in Public Law: Copyright, Lawmaking and the Case of Accounting
Government increasingly leverages its regulatory function by embodying in law standards that are promulgated and copyrighted by nongovernmental organizations. Departures from such standards expose citizens to criminal, civil, and administrative sanctions, yet private actors generate, control, and limit access to them. Despite governmental ambitions, no one is responsible for evaluating the legitimacy of this approach ex ante and no framework exists to facilitate analysis. This Article contributes an analytical framework and proposes institutional mechanisms to implement it. The lack of a comprehensive framework for evaluating copyright to standards embodied in law is surprising because the range of standards potentially affected is large and growing. It includes standards relating to accounting, consumer product safety, energy, government contracting, insurance, medicine, and telecommunications; codes for buildings, corporations, and legal ethics; and manuals for stock exchange listings and scores of others. This Article develops a three-part classification scheme to facilitate analysis of the copyright eligibility of such works based on how privately generated standards are embodied in public law. Otherwise copyright eligible works can assume attributes of law potentially ineligible for copyright through three routes: by passing reference in legal materials (weak form), by incorporation into law after creation (semi-strong form), or by ex ante governmental designation of the standard setter as an officially recognized body (strong form). This Article’s framework facilitates analysis of all private standards embodied in public law; its case study of accounting standards is especially useful because their complex generation process provides illustrations of each class in this scheme.