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Inside ASTM

Focus on Intellectual Property

by John Pace and Tom O'Brien

ASTM International continually faces new challenges. A recent challenge, the protection of intellectual property in today’s digital age, is one that has expanded beyond the music, video, and software world to all publishers of electronic offerings. This article will briefly describe some of the issues currently faced by ASTM (and all SDOs to some extent) in protecting its IP, as well as steps ASTM has been or will be implementing in the near future to address these issues. It is a complicated and troubling area which, unfortunately, cannot be given the in-depth analysis it deserves in this article. We will do our best, however.

Background

Three facts are needed to understand and benefit from this discussion. First, ASTM is one of the leading developers of technologically relevant, market-driven consensus standards in the world today. Second, ASTM is a non-profit charitable organization – it does not exist to make a profit. Third, ASTM supports continued development of new or revised standards primarily through the sale of its copyrighted standards – its intellectual property.

Next, two assumptions have to be made (assumptions with a solid basis in fact). First, there will continue to be a need for new, modified or revised ASTM standards in the future. This seems a rather safe assumption. Second, ASTM’s members will continue the development of such standards. Our members have not expressed any indication that they want to stop.

Out of these facts and assumptions comes an inescapable conclusion – ASTM should, and indeed must, protect its intellectual property to continue in its mission.

The Issues

The Effect of Technology and the Internet
The electronic information age has increased the visibility, availability and usability of voluntary consensus standards. Standards (especially at ASTM) are developed more quickly and efficiently than ever before. “Better, faster, smarter” has been ASTM’s mantra, resulting in ever-improving methods of enabling member participation, standards development, and information delivery. Expanded participation in ASTM from an open and global audience is assisted by teleconferencing, Virtual Meetings and electronic balloting. Electronic delivery of information, new networking technologies and the Internet have enabled new methods of developing and providing access to ASTM standards.

Yet with all technological advancements come inevitable problems. Technology has enabled SDOs to reach a wider audience, creating greater use of their standards, which should result in increased publication sales. Yet revenue from electronic/digital delivery is not what it should be. Why?

This is a complex issue and a number of different factors are involved. Most factors lead to intellectual property rights and copyright. Many do not understand and recognize the bundle of rights that comprise a copyright. Many others do not learn or review the licensing terms applicable when downloading information of any kind. And sadly, there are some that intentionally ignore or take liberties simply to avoid (or limit) their costs for standards.

The Impact
For ASTM, the 11,600 standards we publish are our most important asset (putting aside our volunteer members for this discussion), and the licensing of this copyrighted information is our primary source of revenue. Without this revenue, ASTM cannot support membership activities, develop standards or fund the efficient infrastructure that makes ASTM “world class” in its endeavors. As the types and numbers of copyright and licensing violations increase, efforts to protect ASTM’s IP must also increase.

Many people are aware of the impact that the illegal copying of digital works is presently having on both the music and entertainment industry. Many smaller music studios and distributors have gone out of business because their principal asset – their intellectual property – was appropriated by large numbers of unauthorized users. That same type of conduct is also affecting the operations of many standards developing organizations on a global basis and, as a result, SDOs are investing large sums of money in infrastructure and digital rights management software to properly protect their intellectual property. These are dollars that should rightfully go toward the development of new and necessary standards and member-related services.

Examples of Common Occurrences
We have already noted how technology and electronic delivery have enhanced ASTM processes. ASTM members’ utilization of controlled PDF files for the development of new, and revisions to existing, standards has facilitated all aspects of development, member communications, and staff support. Such uses of electronic sharing of PDFs should not be confused with the following examples of copyright and licensing violations.

• An individual purchases a single document (PDF file) from the ASTM Web site. That person then sends some colleagues that PDF as an e-mail attachment. This is both a copyright violation and a violation of the terms of the licensing agreement applicable to downloads from the ASTM Web site. This simple act may result in damages that equate to the loss of multiple times the cost of the original document.

• ASTM standards are also often discovered posted on open/public Internet sites where anyone in the world can access the documents and reproduce them. This can result in a significant loss of revenue. These costs then end up being shared by all (including members and users who are very conscious about complying with licensing terms). In the past year, the Internet posting of ASTM standards has become increasingly frequent, rather than the rare occurrence it was in the past. We are discovering or being notified of unauthorized (and illegal) posting of ASTM standards on the Internet at the rate of about four or five Web sites per week.

• Another common situation that ASTM is faced with involves companies that purchase individual document downloads and then, without the proper license, place the downloads on a company intranet, for everyone in the company to access and use on an unlimited basis. Such posting is explicitly prohibited in ASTM’s licensing agreement and is a violation of copyright law. Licenses that permit intranet posting or wider use are available from ASTM.

ASTM’s Current Role

ASTM has taken a lead role within both the American National Standards Institute and International Organization for Standardization (ISO) communities in addressing the issue of intellectual property protection. Through studies, surveys, and direct contact with many different parties, we (the SDO community collectively) have come to the conclusion that a large majority of the violations that occur on a daily basis are the result of a lack of understanding and education. Now that we have described the challenge we are faced with, our purpose is to present a simple and basic discussion of this issue from several angles and, most importantly, provide a basic level of knowledge for all who use ASTM standards.

How Did We Get Here?
Many years ago, purchasers of ASTM standards had one option and one option only to obtain a standard or a small group of standards on the same subject matter. That option was to purchase an entire volume within the Annual Book of ASTM Standards. Until the invention of the photocopier, there was no efficient means to copy documents, so concern over copyright was for the most part not a critical business issue.

The photocopier led to the inevitable unauthorized reproduction of documents, including standards. However, addressing the issue and rules for this technology was fairly simple. More important, the potential revenue loss resulting from such infringing acts was limited. First, one needed a purchased copy of the ASTM volume; second, one had to copy the book physically. Although easier than copying a document by longhand, it still required effort.

Let’s now fast-forward 30 years to today’s world. For most users, the easiest means of acquiring a standard today is through electronic delivery, examples of which include downloading a PDF version from a CD-ROM of a larger subset or a complete standards collection, or acquiring an individual, separate PDF download via a live Internet connection from the hosting organization’s (or a third-party vendor’s) Web site. Once a user has an electronic document file, it is simple to create multiple copies of the document – by e-mailing it as an attachment, selecting a large number of copies in the computer’s print menu, or by storing the PDF in a shared folder where everyone in the organization can access, print and e-mail to their heart’s content.

Companies in the past purchased multiple quantities of standards; today’s electronic standard model provides the option/ability to acquire a license from which one procurement transaction can be shared throughout an office, a company division, or an entire enterprise quite easily. The problem is that many times this single document is being continuously shared but has not been licensed for the way it is being used.

Copyright (Briefly) Explained
Copyright protection exists for original works of authorship fixed in any tangible medium of expression from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. ASTM’s intellectual property policy, available on its Web site, describes categories or types of ASTM’s IP and how ASTM registers its copyrights.

ASTM, as the organizational author and owner of its copyrighted standards, technical papers, and related technical products, has the right to determine how and at what price its IP can be copied and distributed, how its IP can be licensed and shared by those who wish to procure such rights, and whether other organizations can use its documents as a basis for their own standards.

ASTM’s Response to the Problem

ASTM recognized this challenge some time ago and elected to embark on a multi-faceted approach. This approach includes bringing greater visibility to the issues, and sharing these concerns with users, members and the worldwide SDO community. Our approach includes working with other standards developing organizations and supporting a systemic approach to the problem.

As a result of the new reality described above, ASTM has taken several additional internal steps to protect its intellectual property and, more important, to protect the ability of its members to continue their standards activity. ASTM’s multi-stepped approach involves: 1) a revised intellectual property policy and soon-to-be revised logo policy; 2) a revised licensing policy; 3) the policing of its IP postings on the Internet; 4) digital rights management; and, last but certainly not least, 5) education – of which this article is a part. Complementing these activities is the introduction of new business terms and licenses to users in customizing their solutions.

Intellectual Property and Logo Policies
A link to ASTM’s IP Policy can be found on its homepage. The IP policy sets forth what ASTM IP is, how it can be used, how it is to be protected and how to use IP owned by others when developing ASTM standards. The current logo policy is simple and straightforward. ASTM’s logo can be used, with written permission, to designate membership in ASTM and to link to ASTM’s Web site.

Licensing
The ASTM licensing policy for electronic downloads is simple and straightforward. When a user comes to ASTM via the Web to obtain an ASTM standard, the user must click through a license agreement and agree to terms and conditions clearly and simply set out. ASTM grants that person a limited, nonexclusive, non-transferable license. The same or similar terms apply if a user purchases an electronic version of an ASTM document from a re-seller or third-party vendor. Yet despite a clear set of guidelines there continue to be numerous license violations. Why?

First, a number of people never take the time to read and understand the license terms they agreed to as part of the download. This leads to assumptions about what the user can or cannot do with the document. A user’s ignorance does not, however, mean that ASTM permits such usage or that ASTM will not enforce the license agreement. Licensing terms have been simplified and clarified to spell out exactly what end users can and cannot do with PDF downloads.

Second, rather than waiting for or entering into the proper license (i.e., for multi-user groups), some choose immediate gratification over compliance. The terms for a download are simple and straightforward. If users want to do something else with a document, they should contact ASTM and work out an arrangement.

Third, SDOs do not have “standardized” license or usage terms. Because terms differ from one standards developing organization to another, there may be some confusion. Again, many problems result from a user not reading the license agreement at hand and simply applying the licensing terms of one organization across multiple SDO collections. We are attempting to resolve this issue.

Digital Rights Management
ASTM will soon implement electronic watermarking. Each electronic download will contain information that will identify the original downloader, the location where it was downloaded, and the authorized licensing terms employed.

Later this spring, ASTM also will begin implementing digital rights management software that will restrict the movement (e-sharing) or networking of individual ASTM PDF documents unless such sharing has been authorized. However, users operating in an authorized fashion should not feel any impact.

ASTM has waited until there were sufficient technological improvements to implement these electronic compliance measures so as not to impact our members and customers negatively. Many SDOs have already implemented digital rights management measures. We wanted to observe these efforts and the inevitable problems that would arise, to avoid as much as possible making the same mistakes. We believe the technology has improved and, with educational efforts, we can avoid many mistakes.

Education
Education is a major focus. As the majority of copyright and licensing violations have been the result of a lack of awareness or a lack of education (we hope), this has been the area of greatest activity in the past year and will continue to be in 2004. ASTM has been addressing each known IP violation with an educational viewpoint, not a penal one. ASTM provides notice of the violation and an opportunity to address the issue. To date, that is all that has been required.

Conclusion

Failure to honor copyrights and licensing terms is not an easy challenge to address in today’s technologically advanced world, and the means discussed in this article are not the perfect solutions to the problem.

Will ASTM’s efforts end all copyright and licensing violations? We hope they help. In the long term, the new measures and policies designed to protect ASTM intellectual property will yield some results, and hopefully help ASTM achieve the full benefits of its investments in electronic distribution. If the current trend does not reverse, ASTM may face a much greater challenge in the future.
ASTM members are our first and primary line of defense in meeting this challenge. Members are the principal source of information on licensing and copyright violations. Our hope is that education will result in greater awareness and fewer unintentional violations which, coupled with new technology and continued member support, will carry the day. //

Copyright 2004, ASTM International

John Pace is vice president, publications and marketing at ASTM International. He is ASTM’s representative to the American National Standards Institute’s Organizational Member Forum Ad Hoc Working Group on Copyright Protection and has actively participated in recent International Organization for Standardization conferences addressing intellectual property protection issues. Pace has over 24 years of experience in standards sales, licensing, copyright, and digital rights management.

Tom O’Brien is general counsel of ASTM International. Prior to joining ASTM, he was a shareholder in the Pennsylvania firm of Klett, Rooney, Lieber & Schorling, where he specialized in intellectual property law and complex litigation. O’Brien is admitted to practice in Pennsylvania and New Jersey, and has lectured in the areas of intellectual property, licensing and insurance.