Posted by Social Science Research Network
European Harmonised Standards, EU Law and Copyright
By Bjorn Lundqvist (Stockholm University)
Abstract: The issue of free and fair access to technical standards is a hot issue. If technical standards, which are being used to interpret or fill in norms in laws and regulations have to be regarded as law, then their content should, according to the general consensus, belong to the public domain. According to several Member States Copyright regimes and general legal thinking, laws and regulations should be publicly accessible free of charge, as only free access complies with basic standards of democracy, rule of law and transparency. If technical standards are not to be regarded as law, but as products of private intellectual creative production, access may have to be paid for, by way of buying a licence or by otherwise paying a price for the product of standardization. Indeed, whether technical standards are law or self-regulation is an issue both of constitutional interest, and of financial importance, and that is the issue which shall be discussed in this paper. The issue shows that it is obvious that the ECJ and the EU legislator want to both obtain the benefits of self-regulation, while still uphold the possibility of judicial review of standards and standard-setting from Trade Rules and Competition Law perspective. From the recent James Elliott case, we now know harmonised standards forms part of EU law, and may be interpreted by the ECJ, and very likely also scrutinized, under Art 267 TFEU. The question is whether a dichotomy between form, content and authorship can also be applicable in reference to the copyright issue discussed in this paper.
