The right to public knowledge is recognized internationally as a fundamental human right, tied to freedom of expression and societal welfare, as well as constitutional rights to access information held by public bodies. It is a core component of Article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. It is a fundamental European right found in Articles 10, 15 and 42 of the Treaty on European Union (TFEU). The right entitles individuals to seek and receive information to ensure government transparency and accountability. Humans collectively learn from one another to build and refine knowledge. The right recognizes public knowledge as the common heritage of humanity to be protected from exploitation.

Technical standards are an important subset of public knowledge. They represent assemblies of public knowledge amongst governmental and private-sector actors on best practices for a range of products and services in the public domain. Technical standards frequently have significant public safety objectives. The activities are generally significantly subsidised through diverse public funding mechanisms, including knowledge contributions by government employees. Private sector actors are also generally accorded anticompetitive exemptions subject to behavioural rules to encourage their participation.

Historically, information-communication technology (ICT) standards were treated as important public knowledge to be shared widely with no assertions of organisational ownership. About fifty years ago, that open treatment was unilaterally changed by the ITU Secretary-General at that time over the objections of its Nation State members to facilitate additional revenue from sales of its technical standards for development projects. The practices proved devastating for ITU standards use and fiscal transparency and were subsequently examined by Sec-Gen Tarjanne as part of a celebrated initiative known as the Bruno Project in 1991 when I was his counsellor. The project became the subject of a book and then eliminated by Sec-Gen Zhao several years later. Unfortunately, the ITU’s worst practices were emulated by a joint pair of private Swiss-based technical standards companies known as the ISO/IEC and their affiliates—principally through on-line paywall websites. The public knowledge availability impediments were amplified by anticompetitive practices such as incorporating only their own additional paywall standards by reference and constrained prices amongst a global sales cartel.

The technical standards-making business also began to change dramatically beginning in the early 1990s—especially in the information-communication technology (ICT) sector. The technologies and services expanded rapidly driven by new standards bodies such as the Internet Engineering Task Force (IETF), the 3^rd Generation Partnership Project (3GPP), and ETSI that made their standards freely available online. A relatively open global marketplace for ICT products and services emerged. The costs of producing, distributing, and maintaining the standards descended to relatively small amounts leading to many new specialised standards bodies. The new industry organisations engaged in standards-making by the scores. In recent years, the extensive use of virtual meeting capabilities became common. Today, most technical standards organisations—especially highly successful ones - eschew paywalls and encourage global proliferation and use of their specifications - relying on participant funding.

Very recently, this history is witnessing another cusp of change through mechanisms to make individual standards structured expressions “machine readable” at permanent, discoverable, on-line addresses. The transformation facilitates and enhances the use of Artificial Intelligence services and discussed further below.

EU’s self-inflicted access impediment

In general, the European Union has exceptionally good norms for access to information by citizens as well as associated services. Unfortunately, it created a regulatory construct for ICT standards forty years ago to bolster its regional standards development capabilities and political-economic aims that persists today. The work in the 1980s was divided between two groups. The European national monopoly telecom technology community in the form of CEPT repurposed ITU CCITT standards for the European market. The information technology community in the form of CEN/CENELEC representing European national standards agencies and repurposed ISO/IEC standards. European Normative technical standards to implement regulatory requirements were exclusively divided between the two. The same regulatory scheme has been largely maintained through a series of EU Regulations based on the same construct that was last revised 15 years ago with the adoption of Regulation (EU) No 1025/2012.

Over the past four decades, the ICT world has changed dramatically. The telecom market became globally open and competitive to encompass all ICT. The diversity and expansiveness of products and services changed profoundly. The national telecom monopolies disappeared. The CEPT standards work was taken up by ETSI which also hosted the global mobile standards. It maintained freely available standards online, became very diverse and engaged with scores of other standards bodies. The CCITT became ITU-T and increasingly diminished in the marketplace. Meanwhile, CEN/CENELEC wedded to ISO/IEC evolved little, remaining relatively closed, and placing their standards behind paywalls with ever increasing prices that often exceeded five Swiss Francs/Euros per virtual page for single-user viewing. They also evolved toward certification standards that could be simplistically used to assert provider claims and associated with regulatory enactments.

So today, the EU normative ICT technical standards for implementing regulations (known as “harmonized European Normative Standards or hENs) are given by the European Commission under work-for-hire arrangements to either CEN/CENELEC or ETSI. Using hENs to assert safety and performance requirements allows easier access to the European Single Market. ETSI develops the hENs itself through very open processes, including a broad array of parties and collaboration with other standards bodies and places the resulting products online—increasingly in machine-readable formats. Conversely, CEN/CENELEC does the work largely via ISO/IEC paywall standards and then republishes them as hENS with added charges through a network of distributors.

As of late 2024, CEN boasts over 17,000 active standards. CENELEC maintains roughly 7,665 active standards. Together, they produce over 1,500 new standardization deliverables annually. Almost all are behind paywalls and only reference other paywall standards. ETSI has published more than 60,000 standards with more than 2,500 annually—with a significant proportion supporting mobile ICT services globally. All are well-versioned and freely available online at persistent Internet addresses, and reference scores of different standards bodies, as appropriate. Although based in Europe, ETSI has emerged as a unique and invaluable global resource for the ICT marketplace, critical infrastructure, public safety, and cybersecurity.

Recent Judicial Reckonings

Against the above history and constructs, landmark judicial judgments by the highest courts in both Europe and the United States on human rights to public knowledge have been handed down over the past several years. These changes in the law—especially the most recent—are also highly relevant to the strategic importance and growing use of Artificial Intelligence (AI) services.

2020 - Georgia v. Public.Resource.Org. In 2020, the U.S. Supreme Court in an opinion written by its Chief Justice, John Roberts, held that the annotations amended to the state of Georgia’s legal code were “ineligible for copyright protection”. The animating principle behind the decision was a doctrine that “no one can own the law.” To create its annotations, Georgia contracted with a private company under a work-for-hire agreement, which then resold the annotated versions that were essential to legal practice at substantial costs. The arrangements invoked another fundamental legal norm known as the Government Edicts Doctrine, which states that works created by government officials in their legislative duties cannot be copyrighted. The facts of the case resemble the European hENs arrangement, where the European Commission employs CEN/CENELEC and ETSI, and government employees are significantly engaged in the work.

The state of Georgia subsequently made its Official Code of Georgia Annotated (OCGA), including annotations, freely available online, ending a paywall that required users to pay for access. Other jurisdictions complied nationwide. Notwithstanding the doomsday predictions of some parties of adverse consequences, the results have produced more open government, more knowledgeable citizens, and served as the basis for expanding the availability of public information in subsequent cases.

2023 – ASTM v. Public.Resource.Org. In 2023, a landmark copyright case regarding public access to industry standards incorporated by reference into law was handed down by U.S. Court of Appeals for the D.C. Circuit. The court ruled that posting such standards online by a non-profit organisation, as Public Resource did, is generally fair use, and rejected claims of copyright infringement. The Court did not address the extent of remaining intellectual property rights by the standards bodies. The decision largely aligns with a broader legal trend aiming to prevent private parties from controlling access to legal regulations.

2023, 2024 – Public.Resource.Org, Inc., Right to Know CLG v. European Commission. In In June 2023, highly respected European Court of Justice (ECJ) Advocate General Laila Medina published a landmark Opinion in a case involving Irish appellants and the potential harm from children’s toys subject to technical standards adopted by the European Commission. Medina stated: “The present case gives the Grand Chamber of the Court an opportunity to rule for the first time on the issue as to whether HTS [Harmonised Technical Standards]—which the Court has already recognised as forming part of EU law and having legal effects—are capable of being protected by copyright; and, further, whether the rule of law as well as the principle of transparency and the right of access to documents, as enshrined in Article 15 TFEU [Treaty on the Functioning of the European Union], require that access to HTS be freely available without charge.” She outlined several bases for a judgment “to give the appellants access to those standards.” Especially notable is her treatment of copyright protection and a finding that no entitlement to copyright protection exists on multiple bases, including HTS’s lack of originality, societal safety interests, and engagement of government authorities. Going further, she notes that “[i]n particular, legislative documents—documents drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for the Member States—should, subject to Articles 4 and 9 of that regulation, be made directly accessible.” The significance of this finding goes to whether documents used in the course of developing Harmonised Technical Standards must also be publicly accessible, including referenced paywall standards.

The ECJ Judgment handed down in March 2024 found “the Commission should have acknowledged, in the decision at issue, the existence of an overriding public interest, within the meaning of the last clause of Article 4(2) of Regulation No 1049/2001, arising from the principles of the rule of law, transparency, openness and good governance, and justifying the disclosure of the requested harmonised standards, since those standards form part of EU law owing to their legal effects.” Noteworthy was the court’s overlooking the copyright issues and AG Medina’s finding about loss of protection but expanding the basis for the judgment based on the “rule of law, transparency, openness and good governance”. Thus, with respect to rights of public knowledge, the court implied that public access must be provided to the documents used and referenced in the standards adoption process.

Somewhat predictably, the ISO/IEC began resisting implementation of the ECJ judgment by instituting a cause of action complaint in Dec 2024 against the European Commission in the EU General Court. It sought an annulment of a Commission implementing decision in Sept 2024 to make available the requested HTS-related ISO/IEC standards. The issue is perhaps the most significant one for implementing the ECJ Judgment because of the CEN/CENELEC practice of relying almost exclusively on ISO/IEC standards in their HTS activities, which is noted in the complaint. As arguments for granting relief, ISO/IEC raise decades old, discarded legacy agreements. Rather appallingly, they state “[i]rrespective of whether there was an overriding public interest in disclosure of International Standards, the Commission has failed to provide fair compensation in good time under Article 17 of the Charter in return for its deprivation of the applicants’ intellectual property.” In other words, ISO/IEC is demanding the EC pay for the exercise of EU citizen rights to public knowledge! The General Court has yet to act on the ISO/IEC complaint.

CEN/CENELEC also appears to be resisting implementing the ECJ judgment on standards—which prompted a May 2025 inquiry letter from the Appellants and Sep 2025 investigation by the ECJ ombudswoman on lack of transparency. As the May 2025 inquiry letter notes, the access website for harmonized standards, CEN/CENELEC asserts notwithstanding AG opinion that “that no entitlement to copyright protection exists on multiple bases including HTS lack of originality, societal safety interests, and engagement of government authorities”, that a user must first register and availability is “under read-only format, without any right to especially download, print, commercialize, reproduce, make available or distribute the documents in any way whatsoever, except if authorised by law.” It also adds that “We reserve all rights concerning text and data mining.” The stage was set for the next related ECJ Judgment.

2025, 2026 – Nederlandse Voedsel v. Stichting Rookpreventie Jeugd. The ECJ had another bite of the right to public knowledge apple with a Netherlands case involving measurement of emissions on the basis of an ISO standard pursuant to an EU Directive, which makes the standards mandatory. In September 2025, ECJ Advocate General Nicholas Emiliou rendered an Opinion. A principal issue revolved around whether the applicable ISO standards were publicly available or not. Like AG Medina, he noted that the “standards have been described as codification of technical knowledge by and for professionals” and that “ISO presents its standards as ‘market driven’”. He goes into some factual detail on ISO, noting they obtain funding from multiple sources “such as contributions from the members, provision of services, contributions of donors to specific ISO activities or possibly funds received from other sources.” Emiliou also notes in a “postscript” portion of his Opinion ECJ decision on harmonized technical standards availability and “non-publication still persists is due to ISO’s claim over intellectual property rights which is generally attached to its standards” and that ISO mounted a challenge in the General Court discussed above. He suggests the ECJ address the matter and “whether the Court in fact accepted the possibility of access ensured by the ISO system as an acceptable solution that the EU legal order could tolerate as such.”

On 21 April 2026, the ECJ Judgment was published. The court found that “the ISO standards referred to in that provision are enforceable against individuals who have had access to the content of the official and authentic version of those standards, even though they have not been published in the Official Journal of the European Union.” The ECJ also found that the March 2024 decision on availability extends to “ISO standards referred to in Article 4(1) of Directive 2014/40, [when they] are drawn up at international level and are made mandatory in the EU legal order by an express reference thereto in an EU act.” It made clear that “the Court has held that the principle of the rule of law—on which, under Article 2 TEU, the European Union is founded—requires free access to EU law for all natural or legal persons of the European Union. That requirement concerns, in particular, persons whose interests are protected by an EU act and who must thus be able to verify, within the limits permitted by EU law, first, that the persons on whom obligations are imposed by that act actually comply with those obligations….” pursuant to the Judgment. The court established what appears to be the fundamental right of access test versus any asserted copyright under European law.

There is an overriding public interest, within the meaning of the last limb of Article 4(2) of Regulation No 1049/2001, in the disclosure of such standards in the context of a request for access to documents made under that regulation by an individual such as the Foundation. Even if those standards were protected by intellectual property rights, that interest should prevail over such rights claimed, as the case may be, by the standardisation body concerned, in accordance with the right of access to documents, guaranteed under the first subparagraph of Article 15(3) TFEU, enshrined in Article 42 of the Charter of Fundamental Rights of the European Union and implemented by Regulation No 1049/2001 (see, to that effect, judgment of 5 March 2024, Public.Resource.Org and Right to Know v Commission and Others, C-588/21 P, EU:C:2024:201, paragraphs 84 and 85).

2026 – ASTM v. UpCodes. The most recent far-reaching of the significant judicial decisions was reached in April 2026 by the U.S. Court of Appeals for the 3rd Circuit. UpCodes is a non-profit organisation that publishes on its website several copyrighted ASTM standards that are referenced in the International Building Code, which has been adopted by multiple jurisdictions. It uses an innovative AI implementation to facilitate user knowledge of applicable building codes. ASTM sued UpCodes for copyright infringement.

The court denied ASTM relief and held that “UpCodes’ use is transformative because it ‘achieves the distinct objective of making the law freely accessible and educating the public on the contents of binding laws.” In reaching its decision, the court cited the 2023 case ASTM v. Public.Resource.Org discussed above, which revolved in part around the fair use doctrine.

Interestingly, the court adopted an analysis similar to the ECJ, stating, “Enhanced public access to the law is a clear and significant public benefit. In this context, enhanced access benefits not only regulated entities that must comply with a building code, but also building residents protected by the code, government entities enforcing its requirements, press members reporting on such enforcement, and members of the public who wish to debate or change the law.” It also viewed the claims on the adverse incentive effects of ASTM’s financial losses as problematic.

The Upcodes case seems especially significant given the organisation’s use of AI-based techniques that can potentially be applied to all technical standards. Indeed, in the ICT domain, NIST recently published a cybersecurity implementation that is JSON based and automates cybersecurity regulatory compliance, described as Policy as Code and relies on technical standards being machine-readable at persistent online addresses.

Residual Considerations

The judicial judgments over the past several years establish a definitive trend. Some residual considerations remain.

Remaining IPR. It is not apparent what remains of asserted intellectual property rights by standards development organisations. Most of the asserted rights have been removed by multiple recent judicial judgments in both Europe and the U.S. The creativity involved was collectively that of private and public sector participants, and generally, by definition, common knowledge. Most standards are funded, referenced, subsidized or contributed to in diverse ways via public treasuries. Most organisations seem content with only a singular, viable right—the ability to maintain the authenticity of their standards creations. That is often done through a generic licensing mechanism that only requires citation to the authentic source document. Anything else—especially contrived regulatory devices to generate revenue—is unlikely to remain viable. In too many paywall examples, the amounts charged are set as unjustifiable if not usurious. In an AI world, the paywall model is not sustainable.

Anticompetitive Behaviour. One of the more tectonic changes in standards making over the past several decades is the proliferation of standards bodies to serve specialised memberships. The organisations themselves compete in the same market sectors. Contrary to the sales pitches sometimes employed by standards bodies, competition in standards development demonstrability encourages innovation and produces better standards. Examples abound. Although the judicial systems have scrutinized anticompetitive behaviour of the participants in these organisations, they have yet to apply competition law to the behaviour of the organisations themselves. The concern is especially applicable to paywall standards bodies that cite only their own or affiliate standards, control the sales price of their products or attempt to get their standards uniquely recognized by regulatory bodies or certification schemes.

Standards “Bill of Materials”. Technical specifications rarely exist entirely as a singularity. They refer to other standards either within the text or in annexes or bibliographies. Standards effectively exist as a kind of Bill of Material. In some instances—especially to circumvent strictures against paywall standards or to drive expanded revenues—a standards body will incorporate by reference multiple other standards. The recent ECJ Nederlandse Judgment seems to have noted this devise and made it relatively clear that such incorporation by reference behaviours will result in the same availability norms being applied to the referenced material.

Fair Use Doctrine differences. Recent U.S. judicial decisions based on fair use underscores the differences between traditional U.S. versus European copyright norms. Although it appears to be changing, European Fair Use doctrine has been different. The emergence of AI services seems likely to merge the doctrines.

Strategic essential. Increasingly, technical standards functionality in most sectors will be predicated on their continuing on-line availability, and access to public knowledge will be a predicate for strategic and effective political economies. Going forward, Europe’s ability to demonstrate leadership in the ICT sector and implement cybersecurity capabilities will hinge on eliminating its self-inflicted public knowledge access impediments for technical standards information and facilitating transparency in significant related activities.