Statement of ANSI Representative

Scott Cooper: [0:02] I appreciate that. My name is Scott Cooper. I'm with the American National Standards Institute and their VP for policy and government affairs. I very much appreciate this opportunity and especially coming after the first panel. [0:15] What I liked about that was that there was a good given take. Also, I think, discussing issues in ways about how we get from here to where we all, I think, collectively want to be.

[0:26] I know for anybody of a certain age, I think IBR has turned into a little bit like following the Grateful Dead around the country. I recognize so many faces in this audience.


Scott: [0:37] Many, I think are going to be up on the dais when I'm back in the audience. I think this event, because it is targeted towards actual implementation of a public law, that kind of focuses the mind. [0:50] I think we're at a stage now where we can actually talk about the parameters that are necessary to make this work, I think, in a practical way. In the discussions that have been going on for the last many, many months, I think there has been a sense that there are some parameters that we're establishing here.

[1:05] It's not all an either or an or, but there is some middle ground here. I think some issues that came out in that first panel are ones that are going to be very fruitful for following. So I'm going to be very short. I had a much longer presentation. Many of you had heard that already.

[1:19] But I would like to just talk about sort of putting it in perspective about the public, private partnership and the fact that the industry but also standards developers, academics, consumer groups, and many, many others and the government all participate in not only the creation of standards and the implementation of standards but the whole system of how standards fit within the US construct of our economy and health and safety issues.

[1:48] It's somewhat unique, less unique than it has been because I think the rest of the world, especially Europe, is now looking to the US and taking our model much more seriously than they have in the past. I think, again, that public/private partnership, sometimes its public/public/private sometimes it's public-private-private so you got a certain amount of continuum there. It's worked very well.

[2:08] It's not one unfortunately that ends itself making a nice Gantt chart or when some up to the hill or agencies, sort of it's the valley of death. You have five minutes to get through an explanation of how the U.S. system works. Either you succeed in that five minutes, or the eyes glaze over and you might as well just walk out of the room. It's about 50/50 sometimes which case it is. When it does work, people understand when you get to the point when people start realizing how the U.S. system works, and the benefits of that. Then that's a very fulfilling kind of a situation what makes our jobs you know, work well.

[2:36] Certainly we have the documents I think that underscore that. Especially OMB circular 119, which talks about how agencies should recognize the positive contributions of standards developed and related activities, and all of the benefits thereof. Increased productivity, efficiency, government industry expand opportunities for international trade. Conserve resources, improve health and safety, and protect the environment, so it's a very good list. One that I think is very credible.

[3:11] I think one of the best examples of why this all works is what the Commerce department does in its oversight. I've heard of tracking agency use of voluntary standards. In the most recent report they talk about how in the last year, that only one agency has promulgated a government unique standard. In that same period, federal agencies have adopted 363 new voluntary standards.

[3:36] So clearly the trends are very good for that public-private partnership. This also carries through on the international side where on the World Trade Organization's agreement on technical barriers to trade, there's an obligation, not just a request or an aspirational goal, but an obligation where technical regulations are required, and relevant international standards or their completion is imminent.

[4:00] Members, i.e. the nation-states, shall use them as a basis for their technical regulations. This is a case where private sector standards, or at least consensus standards, are meant to keep folks from gaming systems on international trade. Areas where right now we don't have a lot of global rule making, or certainly hard and fast rules, I think standards are proving, in the private/public partnership, is proving to be able to fill that void I think very effectively.

[4:29] Then going to I think the issue at hand here, or certainly from the viewpoint of a lot of people here on the dais, A119 states that, "It is the policy of the U.S. Government to observe and protect the right of copyright holders when incorporating by reference into law a voluntary consensus standard." Then it goes into details as to why that's important.

[4:48] It is important, because if you take away the ability of standards developers to control their product, one losing control means that then you lose the ability to have a pristine document, but it also means that the whole flow of revenue and resources that go into creating those documents is lost. Once you lost, it's almost impossible to recreate that situation. One of the things about standards is that there's so much...

[5:17] The U.S. approach toward governance is these are organic developers, in other words, ASTM goes back to 1905, I think?

Jeff Grove: [5:27] 1897.
Scott: [5:28] 1897. Much, much, much earlier than ANSI, which is 1912. These are organizations that have grown and changed over time to recognize differences in approaches, and I think to be able to stay current to the needs. If suddenly there's a line in the dust over an approach that changes things around so radically, as some would suggest now I think for incorporation by reference, that's very problematic. We don't know what's on the other side. [6:09] We have our fears. We have our concerns as to what that might do to the whole organic approach that we've had for 100 years on how standards are developed. Certainly there are reasons for, I think, wanting to be able to work with other groups to make sure that we stay current and the public policy needs for the standards continues to grow and evolve.

[6:34] But to say that there is now going to be this complete change about how standards fit in the system and, I think, sort of a cavalier approach "well, it will all work because it's worked for the recording industry, it's worked for other organizations. Don't worry, these things just happen..."

[6:49] Well, they don't just happen, and I think that many other industries would say that they have not come out looking better because of the situation. That's not to say that there aren't important issues that need to be discussed, and I'm glad, again, that we're having this conversation.

[7:06] At ANSI we were very pleased to work closely with the administrative conference and I'm glad that Emily is here on their recommendation from the December planning on IBR. I think the important thing there is, again, that they didn't try to draw lines in the dust either.

[7:21] They talked about how their recommendation did not attempt to resolve the questions of copyright law, rather that their recommendation encourages agencies to take steps to promote the availability of incorporated standards and incorporated materials within the framework of existing law.

[7:36] They then quote the National Science and Technology Council's acknowledgement that the Texas standards and associated documents should be available to all interested parties on a reasonable basis which may include monetary compensation where appropriate.

[7:48] I think there are parameters here we can talk about as opposed to the perfect solution. I think that's part of what I hope this conversation will be about. If we can get those parameters such that we can deal with some of the issues that were raised in the first panel, and I'd like to get into that very briefly in a minute, then I think we are going to have a very fruitful discussion.

[8:08] But if ends up being this clash between two polar opposite positions, I don't know how that is going to serve public policy needs. And certainly the public policy needs are important in this issue.

[8:22] First of all I think the problems with, I think, the outlying ideas here on sort of the standards should not only be made publicly available but that standards should lose copyright if they're accepted as incorporated by reference, and I'll just go through this very quickly.

[8:41] There are three issues that immediately come to mind, and this, again, was brought up at the first panel. So many standards that are incorporated have built within them secondary and tertiary references. Some of these go way down that rabbit hole.

[8:56] You have just a tremendous number of references built within these standards. So to have the standard itself may not get you very far, and Emily, I think, has made that point very well. You need some other explications, and that may be part of the discussion I think we all could very productively have.

[9:15] If you just have a document, and having seen a lot of these, it is not readily usable. It is not user friendly, and certainly not, I think, even to the informed public if what they're trying to do is use that standard to make public policy decisions on issues of health and safety.

[9:37] So I think the idea that somehow if we could talk about what other documents and what other ways of developing transparency within the incorporation system, that would be, I think, a very useful discussion. It's one that I hope we could have, if not part of this discussion, then further down the road. No doubt we will all see each other in further events as well.

[10:00] Just an example of the secondary tertiary references, the National Fire Protection Association in their NFPA 101 which is their life safety code has within it references to 69 other NFPA documents, standards as well as 45 other standards from six other standards developers.

[10:17] So within those standards, and I didn't go much further than this, inevitably there are going to be references to other standards. Well, how is that going to be useful to anybody when they see this document?

[10:28] Even the four page standard that we talked about in the first panel, that four page standard may have multiple references built within it. So just having the standard available is not, I think, the solution if we're talking about public policy concerns. But that doesn't mean that the whole idea of transparency can't be part of that discussion.

[10:47] Secondly, many of the standards under IBR rules are international standards such as those propagated by ISO and IEC, both based in Geneva, Switzerland. Any changes to current regulations regarding IBR would have no jurisdictional effect on the current sales and distribution practices of ISO and IEC, so I'm not too sure, we can call out the spirits, but I'm not too sure we can actually make some of these things actually happen.

[11:13] Third, this I know has been a concern for DOT is that agency budgets would be significantly impacted if they had to undertake the responsibility of buying site licenses or making standards available in a downloadable format free to citizens. I don't think anybody's really parsed that out, or if they have I've not heard it.

[11:36] How would that work even if you tried to do it? I think an equally worrisome question is if you go that route, if you have the government suddenly acting a monopoly purchaser, what's that going to do to the ecology of how standards are created? Suddenly you've changed around how the world utilizes the standards.

[11:57] You remove those who actually are those who need these standards for the daily needs of their business or their life and put it all back on the government. It seems like that's the wrong way to go.

[12:08] Again, there should be a discussion about how we make this all work for everybody. I think the idea that having these simple solutions, because usually every simple solution to a complex problem is a wrong one. The discussion I think is one that makes a lot of sense.

[12:26] I'll finish very quickly here. I think that there is room for a lot of very useful discussion among those in this room and I think those who are hopefully listening as well as to how we make IBR work in better ways for public policy needs. But that is not, again, the Draconian solution of eliminating copyright. I think that is just the wrong repose.

[12:48] I think there is a lot of things that can be done with transparency that a lot of things that can be done on better explication of standards the way that Emily described.

[12:59] My last example on that would be the government printing office has a top 25 list of documents that it sells. One of those is a document put out by the Consumer Products Safety Commission on lead abatement. It's not an expensive pamphlet. It's like two dollars, I think.

[13:16] But here they are sitting on a whole series of standards, whole series of rule makings as well as public law on lead abatement going back for decades. Yet, they see the need to make lead abatement solutions available to the public to put out a document based upon publicly available documents and based upon the work of the resources of the CPFC staff and they're charging for it. Not much, but they're charging for it.

[13:50] So I think there are many approaches that are all legitimate going forward on these things. We don't have to have a one size fits all, that's probably going to be the wrong solution.

[13:59] But if CPFC can sell the lead abatement pamphlet for two dollars and it's a best seller for GPO, it seems like there's room for a lot of discussion, a lot of solutions that may work in some cases and not in others. But I think we need to have that kind of discussion and I'm hoping that this is one of the places we can have that. Thank you.

Jeannie Layson: [14:19] Thank you Scott.

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