Top EU court advisor says technical standards, like laws, should not be locked down by copyright

One of the most pernicious ideas that copyright maximalism has spread is that preventing people from freely accessing creative material is not just a good thing to do, but should be the natural state of affairs. This has made questioning whether copyright is really the best way to support artists and promote creativity hard. Against that background, there’s an interesting opinion from one of the top EU court’s special advisers, known as advocates general, suggesting a situation in which copyright definitely should not be applied. The Court of Justice of the European Union’s press release explains the background:

Public.Resource.Org Inc. and Right to Know CLG are two non-profit organisations whose focus is to make the law freely accessible to all citizens. The organisations had challenged before the [EU] General Court a Commission Decision refusing to grant them access to four harmonised technical standards (HTS) adopted by the European Committee for Standardisation (CEN) with respect to the safety of toys in particular. As their challenge was unsuccessful, they appealed the General Court judgment before the Court of Justice.

In today’s Opinion, Advocate General Laila Medina looks into the question whether the rule of law as well as the principle of transparency and the right of access to documents of EU institutions require that HTS are freely available without charge.

The conclusion reached by Advocate General Laila Medina is straightforward:

for the purposes of EU law in general and for the access to EU law in particular, and, given HTS indispensable role in the implementation of EU secondary legislation and their legal effects, they should, in principle, not benefit from copyright protection.


even if HTS could be protected by copyright, free access to the law has priority over copyright protection.

The basic idea is simple: people can’t be expected to follow a law (or technical standard) if they don’t have ready access to it. Copyright is a barrier to access, and therefore should not be allowed for harmonised technical standards (HTS), just as it is not permitted for EU laws. And even if for some reason HTS were subject to copyright, free access must be granted anyway, blunting its negative impact.

It’s worth emphasising that the Advocate General’s opinion is only advisory, and may be ignored by the main court when the latter issues its final judgment on the case. Nonetheless, it’s great to see one of the EU’s top legal authorities dare to go against today’s orthodoxy that copyright is so wonderful it should be applied to everything, no exceptions.

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