IP: Holding to a higher standard?

Using industry standards can lead to potential copyright liability. Here's how to avoid a problem.

An industry standard code, or standard industry classification (SIC) code, is often a formal document that establishes uniform engineering or technical criteria, methods, processes and/or practices. Today, many companies, including health care, construction and transportation companies, are forced to use such codes or industry-standard reference numbers to receive governmental reimbursements or governmental approval to operate.

The difficulty is that many industry standards are developed privately or unilaterally by a corporation, trade union or trade association, and as such the standards themselves may be the subject of copyright protection. A company's use of these industry standards — even its creating software that allows its customers to use them — may unknowingly make it liable for copyright infringement.

Applying these principles to the hypothetical situation referenced above, it would appear that many of the industry standard creators could successfully prove that they own a valid copyright in their industry standard codes. The industry standard codes would most likely be considered "original works of authorship," which is the requirement for obtaining copyright protection. Even seemingly non-creative works such as computer code, for example, can obtain and will receive copyright protection. These claims would be strengthened even further if the entity that created them was able to obtain copyright registrations for them, which would act as prima facie evidence of the validity of the copyright in the industry standards. 

This introduces additional complexity. For example, consider a circumstance wherein a third-party company posts on its computer servers an SIC code definition developed by another, or creates and posts on its interactive web site tool or utility that references or uses one or more industry standard codes to realize a business objective. Might this constitute copyright infringement? It may indeed. The placement of identical copies of industry standards developed by one company onto another company's servers would most likely be held to constitute a copy copyright owner's intellectual property that likely violates the copyright owner's exclusive right to protect the industry standards. Furthermore, even if that third party did not place or copy the industry standards onto its servers, by maintaining the servers and allowing third parties to do so, the third party would likely be considered liable for contributory and/or vicarious copyright infringement as referenced above.

Contributing Author

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Scott Slavick

Scott Slavick is a shareholder at Brinks Gilson & Lione, where his practice focuses primarily on trademark prosecution and trademark litigation. Scott maintains all aspects...

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