Third-party Standards Mitigation

Can building codes be privately owned? Questions surrounding ownership of building codes and standards have been a source of ongoing legal debate for many years. A seemingly straightforward question of “who can own the law” is complicated when privately produced, industry consensus standards are incorporated into legislative or government agency actions.

Standards creation

Organizations like ASTM International, ASHRAE and the National Fire Protection Association spend countless hours engaging volunteers and industry participants to create standards, which the organization then copyrights. This allows the organizations to protect their work, sell copies of the standards and license access.

The quality of these standards is rarely subject to dispute, and it’s common for governmental bodies and agencies to incorporate standards and their methods into codes and performance requirements for projects with government oversight. This has created problems for the organizations that issue these standards.
Courts and legislatures typically hold that no one can own the law but have been slower in defining who can control the publication of that law. Efforts to provide free public access to standards incorporated into laws have resulted in lawsuits and contests from those claiming ownership or a right to reproduce the materials and charge for them.

Many courts have found that when a legislature enacts a law, they speak on behalf of that state’s people. With people as the authors, laws are matters of public domain that cannot be copyrighted. This holds true even where a third-party industry standard, such as a code or safety compliance requirement, has been adopted into law.

Project-specific impacts

In response, some standards organizations have provided separate means of access or developed materials specifically for incorporation, which may give the essential points of a standard but can lack certain background or the expanse of data or considerations available in the full, copyrightable version. Technical questions of standards copyright can have project-specific impacts for designers, architects and trades. Beyond avoiding the risks of unauthorized use of third-party standards, the hidden exposure rests in “meet code” clauses and undefined project specifications.

Nearly every project contract includes generic language and undefined terms to ensure compliance with applicable building codes and local standards. The lack of detail and defined scope in the crossover with copyrighted standards and legislative codes can present a downstream risk. When details of applicable codes and specifications are not spelled out in a contract, builders and tradespeople must independently find and research these obligations. Where codes incorporate third-party standards, controlling and owning those standards can impact the effort to determine what the code requires and, by extension, what the contract compels. This means trades must find the applicable code and ensure they are using the proper version of that code and its standards, which can also entail an outlay of monies to purchase the relevant technical documents so that the entirety of the code is available.

Managing contract risks

Uncertainty and ambiguity in contracts are risk points where legal exposure lives. Managing the risk of incorporated third-party standards, applicable codes and vague contracts can be daunting; however, a practical mitigation strategy can start with a few simple detail-focused acts.

Consider bid packages: whether a request for proposal or a quote, establishing the applicable codes, providing specifications on relevant standards and listing specific incorporated third-party standards helps build in required costs, sets expectations early in the process, and provides greater certainty in the contract and negotiation of what those terms mean to the bottom line from monetary and risk management perspectives.

Beyond project needs is continuing education of industry standards and best practices. Access resources on material, performance and investigative standards issued by third-party industry organizations that can help ensure current practices are targeted toward the best methods. Then, when those standards are incorporated into governmental requirements, there will be fewer surprises, regardless of who owns the code.