Federal Court to Decide APA's Claim of Copyright Infringement for Its Testing Standards: Are They Public Domain?

Friday, February 26, 2016
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On February 18, 2016, six law professors urged a D.C. federal court to rule against the American Psychological Association Inc.(APA), and their motion for a summary judgment and permanent injunction over a copyright infringement. The APA and the other plaintiffs claim that the website Public.Resource.org (Public Resource), infringed a copyright for their “Standards for Educational and Psychological Testing” (Standards) by publishing the documents online. The six professors (experienced in the study and development of copyright law) claim the materials became public domain when they were referenced in the Code of Federal Regulations. Therefore, the plaintiffs have no legal grounds to claim a copyright violation, according to the group of professors.

What Constitutes “Public Domain?”

The term “public domain” refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. According to the professor’s brief, because the Standards were effectively brought into the public domain when they were incorporated into the Code of Federal Regulations by the Department of Education, they are freely accessible and downloadable online.

Public Resource is an organization that publishes information such as public codes and regulations online for the public and has been in hot water several times before. The plaintiffs filed their complaint in May 2014 seeking a permanent injunction against the organization for continuing to publish and distribute the materials.

To read about a similar case against Public Resource, click here.

The group of law professors, claim that although standards may be drafted by private entities, when the standards are adopted by public entities and given the “force of law,” copyrights cannot be enforced on them, according to the brief. Click here to read the Amicus Brief from the law professors in full.

Using Materials as Reference.

The U.S. Department of Education has established that the Standards are to be used as a reference when devising various types of tests, the information must be in the public domain and not controlled by an entity that can monopolize its distribution. This is one of the arguments against the APA and other plaintiffs by the six law professors.

Closing Statement.

“A ruling in favor of plaintiffs in this case would place the private pecuniary interests of a few over the significant public good attendant to wide-scale availability of and access to the text of enacted laws. This court should adopt the straightforward approach that prior courts have adopted, holding that the text of the law is not subject to copyright protection,” the brief stated in its conclusion.

The fact that all six law professors are experienced in the study and development of copyright law is a major factor and helps the defendant (Public Resource) in this case.

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Donahue, Bill. “House Panel Weighs Copyright For Mandatory Standards.” Law360. (January 14, 2014). Web.

Penton, Kevin. “Standards Adopted Into Law Are Public Domain, Law Profs Say.” Law360. (February 18, 2016). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealth Lawfirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone; (407) 331-6620

KeyWords: Copyright infringement, public domain, Standards for Educational and Psychological Testing (Standards), American Psychological Association (APA), U.S. Department of Education, Public Resource, Public.Resource.org, Code of Federal Regulations, copyright protection, copyright defense attorney, legal counsel for copyright laws, legal representation for health care professionals, health law attorney, Florida health care lawyer, health law, The Health Law Firm

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