R47656 — Copyright in Standards Incorporated by Reference into Law and the Pro Codes Act

This report explains the current law concerning copyright protection for technical standards developed by private organizations and subsequently incorporated by reference into federal, state, or local law. It reviews the outcomes and reasoning of prominent case law on the issue from the federal courts and the potential effect of legislative proposals introduced in recent Congresses. Technical standards—such as fire prevention and building codes—play an important role in protecting public health and safety, as well as ensuring compatibility and interoperability in particular industries. Federal policy generally encourages federal agencies to use privately developed, voluntary consensus standards, instead of “government-unique” standards. Private standards-developing organizations (SDOs) often create these standards by bringing together experts and stakeholders in particular areas and reaching consensus on effective technical solutions. SDOs may fund their activities by publishing and selling copies of their standards (e.g., an electrical code handbook) to people who use those standards (e.g., a property developer). Privately developed standards are used by federal, state, and local governments in various ways. In particular, governments may incorporate such standards into law or regulation by reference. For example, a state or locality may adopt a privately developed electrical code, making that standard a legal requirement for the electrical design of a building in that jurisdiction. Other incorporated-by-reference (IBR) standards may serve as references or as guidance but do not formally impose legal obligations. SDOs may rely on copyright protection to fund their standards-development activities. Copyright grants authors of creative works (e.g., books) the exclusive right to copy and sell their work, among other things. As an original work of authorship, standards are generally entitled to copyright protection if they are created by a private entity. Copyright protection, when applicable, allows SDOs to prevent third parties from making and distributing unauthorized copies of their standards. When technical standards are incorporated into law, maintaining copyright protection on them can raise constitutional and policy concerns about public access to the law. Under federal law, standards incorporated by reference into federal regulations must be made reasonably available to interested parties. State and local governments also often use IBR standards and may have differing policies for public access. Many SDOs choose to make their standards available in some form online, even if they assert copyright ownership over the IBR standards, while charging for printed copies or online versions with greater functionality than the free online versions. Some public-access organizations, as well as commercial entities, have disregarded SDOs’ copyright assertions and posted technical standards online, including making them available for free download. These groups argue that IBR standards lose copyright protection once they are incorporated into law or that their activities are a permitted fair use of SDOs’ copyrighted material. Several copyright disputes brought by SDOs have led to protracted litigation in multiple forums. Despite decades of decisions, courts have not reached consensus on whether technical standards remain protected by copyright after they are incorporated into law. U.S. Courts of Appeals for different regional circuits reached seemingly conflicting conclusions on that question in the 1980s–2000s. Following the U.S. Court of Appeals for the District of Columbia Circuit’s decision in American Society for Testing and Materials v. Public.Resource.Org (ASTM v. PRO I), 896 F.3d 437 (D.C. Cir. 2018), courts have increasingly focused on whether copyright’s fair use doctrine permits public-access groups or commercial entities to make IBR standards available online. After ASTM v. PRO I and the Supreme Court’s decision on a related issue in Georgia v. Public.Resource.Org, 590 U.S. 255 (2020), recent cases have generally ruled against SDOs’ copyright infringement claims, mainly on fair use grounds, although the results have not been uniform. The Pro Codes Act (H.R. 4072 in the 119th Congress) seeks to address this issue legislatively. The Pro Codes Act would explicitly provide that otherwise copyrightable IBR standards retain their copyright protection even after a government incorporates them into law. At the same time, the bill would require that SDOs make IBR standards publicly available online in a readable, accessible format at no monetary cost to users. The Pro Codes Act would not require SDOs to make IBR standards available for printing or download, and SDOs could require users to agree to terms and conditions before accessing the standards.

Curated by CRS — every bill listed in this report's relatedMaterials. Edge type cited_in_report, gold confidence.

• HR 4072 — Pro Codes Act · 119th Cong
• HR 4009 — Pro Codes Act · 119th Cong
• HR 7737 — One Agency Act · 118th Cong
• HR 7581 — Improving Law Enforcement Officer Safety and Wellness Through Data Act · 118th Cong
• HR 4951 — Ensuring Justice for Victims of Terrorism Act · 118th Cong
• HR 3591 — Asylum Accountability Act · 118th Cong
• HR 3269 — Law Enforcement Innovate to De-Escalate Act · 118th Cong
• HR 1631 — Pro Codes Act · 118th Cong
• S 835 — Pro Codes Act · 118th Cong