Note by Alex Meehan
Private standards development organizations (SDOs) allow municipalities, cities, states, and government agencies to obtain high-quality, accurate, and reasonably priced regulatory codes without expending valuable resources to independently develop codes in areas in which they lack expertise. Widespread government adoption of privately created codes and standards thus promotes principles of both “efficiency and economic competition.” Moreover, government adoption of codes, rather than government creation of codes, promotes safety by creating greater uniformity among standards and regulations across jurisdictions.
Canadian Standards Association (CSA) is a Canadian nonprofit SDO that develops, copyrights, promotes, and sells model codes to tradespeople throughout industrial fields in Canada. Typical examples of model codes include electrical codes, fire prevention codes, oil and gas codes, and plumbing codes. CSA has created over 3,000 model codes intended to protect workers and improve safety standards in potentially hazardous industries. CSA's ultimate goal is for government bodies to adopt its model codes as law. However, like many SDOs, CSA relies on the revenue from its sale of copyrighted model codes to continue developing new innovative codes and improving its existing codes.
Since 1985, CSA has been engaged in a dispute with P.S. Knight Co. (Knight) over both the copyrightability of CSA's model codes and, subsequently, Knight's alleged infringement of its copyrights. CSA alleges that Knight's Electrical Code Simplified series of books, which began as an annotated, shorter version of CSA's code, eventually became an exact replica of CSA's code in later editions. Knight, which sells competing versions of CSA's copyrighted codes, markets its codes as “Same Code[s]--Different Price” and “All the Code[s] at 1/3 the cost!” In 2015, CSA successfully brought an infringement suit against Knight in Canadian federal court. The court enjoined Knight from reproducing, distributing, or selling any products that infringe upon CSA's valid copyright for its 2015 Canadian Electrical Code. In 2020, while this Canadian litigation was ongoing, Knight formed P.S. Knight Americas, Inc., an American company based in Texas, and subsequently began selling competing versions of CSA's codes in the United States.
In response, CSA alleged in the United States District Court for the Western District of Texas that Knight infringed seven of CSA's copyrights in its model codes and sought a declaratory judgment of invalidity and non-ownership of Knight's United States copyrights. The district court agreed, granting CSA's motion for summary judgment and holding that Knight's copyright registration was invalid as a matter of law. In Canadian Standards Ass'n v. P.S. Knight Co. (Knight), the United States Court of Appeals for the Fifth Circuit reversed, holding that Knight's copying of CSA's model codes was not infringement because the codes had been incorporated by reference into ““the law” of Canadian jurisdictions. In doing so, the Fifth Circuit followed the “clear” holding of Veeck v. Southern Building Code Congress International, Inc., which reasoned that “the law” cannot be infringed upon.
In Knight, the Fifth Circuit's broad interpretation of Veeck ignored the potential catastrophic effects of its decision on SDOs, and by extension, government entities, private businesses, and the general public. Instead, the majority opinion engaged in a peripheral analysis of the policy effects of its decision, relying purely on Veeck's holding while brushing off its flawed reasoning. This Note examines the court's weakening of copyright protection for SDOs and explores the conflicting public policy views between the majority and the dissent surrounding the copyrightability of model codes. Part II of this Note discusses international copyright claims and the copyrightability of model codes, with a focus on questions of infringement. Part III analyzes the court's interpretation of Veeck, with a focus on the distinction between issues of copyrightability and infringement. In Part IV, this Note argues that the majority's failure to both distinguish Veeck and balance all the relevant policy considerations threatens the continued existence and success of code drafting organizations, as well as the public and private entities that depend on them. Part V briefly concludes.
About the Author
Alex Meehan. J.D. Candidate 2026, Tulane University Law School; B.S. 2022, Northeastern University.
Citation
99 Tul. L. Rev. 859