Making the Law Accessible in Europe and the USA

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EFF Legal Intern Alissa Johnson contributed to the writing of this blog post.

Earlier this month, the European Union Court of Justice ruled that harmonized standards are a part of EU law, and thus must be accessible to EU citizens and residents free of charge.

While it might seem like common sense that the laws that govern us should be freely accessible, this question has been in dispute in the EU for the past five years, and in the U.S. for over a decade. At the center of this debate are technical standards, developed by private organizations and later incorporated into law. Before they were challenged in court, standards-development organizations were able to limit access to these incorporated standards through assertions of copyright. Regulated parties or concerned citizens checking compliance with technical or safety standards had to do so by purchasing these standards, often at significant expense, from private organizations. While free alternatives, like proprietary online “reading rooms,” were sometimes available, these options had their own significant downsides, including limited functionality and privacy concerns.

In 2018, two nonprofits, Public.Resource.Org and Right to Know, made a request to the European Commission for access to four harmonized standards—that is, standards that apply across the European Union—pertaining to the safety of toys. The Commission refused to grant them access on the grounds that the standards were copyrighted.   

The nonprofits then brought an action before the General Court of the European Union seeking annulment of the Commission’s decision. They made two main arguments. First, that copyright couldn’t be applicable to the harmonized standards, and that open access to the standards would not harm the commercial interests of the European Committee for Standardization or other standard setting bodies. Second, they argued that the public interest in open access to the law should override whatever copyright

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