European Harmonized Standards as ‘Part of EU Law’: The Implications of the James Elliott Case for Copyright Protection and, Possibly, for EU Competition Law

Abstract

According to several Member States Copyright regimes, 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. Indeed, legal text is generally exempted from Copyright protection. However, what should we do with privately created rules, i.e. technical standards incorporated in laws by reference? Are technical standards incorporated by reference ‘law’, and exempted from Copyright protection, or something else? On the contrary, if such technical standards are not ‘law’, but the result of private intellectual creativity, access may restricted. Generally, Standard-Setting Organizations have been charging for access to technical standards claiming copyright protection. However, from the recent James Elliott case, we now know that EU harmonized standards, i.e. technical standards referred to in certain EU directives, forms part of EU law and may be interpreted by the European Court of Justice. So, no copyright? European harmonized standards are freely available for copying, uploading and downloading? Well, it depends. Indeed, the James Elliot case raises interesting questions of both constitutional and commercial character in reference to the status of technical standards incorporated by reference in law, of which some are discussed in this article.