[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 835 Introduced in Senate (IS)]

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118th CONGRESS
  1st Session
                                 S. 835

 To amend title 17, United States Code, to reaffirm the importance of, 
and include requirements for, works incorporated by reference into law, 
                        and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 16, 2023

  Mr. Coons (for himself, Mr. Cornyn, Mr. Tillis, and Mr. Whitehouse) 
introduced the following bill; which was read twice and referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To amend title 17, United States Code, to reaffirm the importance of, 
and include requirements for, works incorporated by reference into law, 
                        and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Protecting and Enhancing Public 
Access to Codes Act'' or the ``Pro Codes Act''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) Congress, the executive branch, and State and local 
        governments have long recognized that the people of the United 
        States benefit greatly from the work of private standards 
        development organizations with expertise in highly specialized 
        areas.
            (2) The organizations described in paragraph (1) create 
        technical standards and voluntary consensus standards through a 
        process requiring openness, balance, consensus, and due process 
        to ensure all interested parties have an opportunity to 
        participate in standards development.
            (3) The standards that result from the process described in 
        paragraph (2) are used by private industry, academia, the 
        Federal Government, and State and local governments that 
        incorporate those standards by reference into laws and 
        regulations.
            (4) The standards described in paragraph (3) further 
        innovation, commerce, and public safety, all without cost to 
        governments or taxpayers because standards development 
        organizations fund the process described in paragraph (2) 
        through the sale and licensing of their standards.
            (5) Congress and the executive branch have repeatedly 
        declared that, wherever possible, governments should rely on 
        voluntary consensus standards and have set forth policies and 
        procedures by which those standards are incorporated by 
        reference into laws and regulations and that balance the 
        interests of access with protection for copyright.
            (6) Circular A-119 of the Office of Management and Budget 
        entitled ``Federal Participation in the Development and Use of 
        Voluntary Consensus Standards and in Conformity Assessment 
        Activities'', issued in revised form on January 27, 2016, 
        recognizes the benefits of voluntary consensus standards and 
        incorporation by reference, stating that ``[i]f a standard is 
        used and published in an agency document, your agency must 
        observe and protect the rights of the copyright holder and meet 
        any other similar obligations.''.
            (7) Federal agencies have relied extensively on the 
        incorporation by reference system to leverage the value of 
        technical standards and voluntary consensus standards for the 
        benefit of the public, resulting in more than 23,000 sections 
        in the Code of Federal Regulations that incorporate by 
        reference technical and voluntary consensus standards.
            (8) State and local governments have also recognized that 
        technical standards and voluntary consensus standards are 
        critical to protecting public health and safety, which has 
        resulted in many such governments--
                    (A) incorporating those standards by reference into 
                their laws and regulations; or
                    (B) entering into license agreements with standards 
                development organizations to use the standards created 
                by those organizations.
            (9) Standards development organizations rely on copyright 
        protection to generate the revenues necessary to fund the 
        voluntary consensus process and to continue creating and 
        updating these important standards.
            (10) The people of the United States have a strong interest 
        in--
                    (A) ensuring that standards development 
                organizations continue to utilize a voluntary consensus 
                process--
                            (i) in which all interested parties can 
                        participate; and
                            (ii) that continues to create and update 
                        standards in a timely manner to--
                                    (I) account for technological 
                                advances;
                                    (II) address new threats to public 
                                health and safety; and
                                    (III) improve the usefulness of 
                                those standards; and
                    (B) the provision of access that allows people to 
                read technical and voluntary consensus standards that 
                are incorporated by reference into laws and 
                regulations.
            (11) As of the date of enactment of this Act, many 
        standards development organizations make their standards 
        available to the public free of charge online in a manner that 
        does not substantially disrupt the ability of those 
        organizations to earn revenue from the industries and 
        professionals that purchase copies and subscription-access to 
        those standards (such as through read-only access), which 
        ensures that the public may read the current, accurate version 
        of such a standard without significantly interfering with the 
        revenue model that has long supported those organizations and 
        their creation of, and investment in, new standards.
            (12) Through this Act, and the amendments made by this Act, 
        Congress intends to balance the goals of furthering the 
        creation of standards and ensuring public access to standards 
        that are incorporated by reference into law or regulation.

SEC. 3. WORKS INCORPORATED BY REFERENCE INTO LAW.

    (a) In General.--Chapter 1 of title 17, United States Code, is 
amended by adding at the end the following:
``Sec. 123. Works incorporated by reference into law
    ``(a) Definitions.--In this section:
            ``(1) Circular a-119.--The term `Circular A-119' means 
        Circular A-119 of the Office of Management and Budget entitled 
        `Federal Participation in the Development and Use of Voluntary 
        Consensus Standards and in Conformity Assessment Activities', 
        issued in revised form on January 27, 2016.
            ``(2) Incorporated by reference.--
                    ``(A) In general.--The term `incorporated by 
                reference' means, with respect to a standard, that the 
                text of a Federal, State, local, or municipal law or 
                regulation--
                            ``(i) references all or part of the 
                        standard; and
                            ``(ii) does not copy the text of that 
                        standard directly into that law or regulation.
                    ``(B) Application.--The creation or publication of 
                a work that includes both the text of a law or 
                regulation and all or part of a standard that has been 
                incorporated by reference, as described in subparagraph 
                (A), shall not affect the status of the standard as 
                incorporated by reference under that subparagraph.
            ``(3) Standard.--The term `standard' means a standard or 
        code that is--
                    ``(A) a technical standard, as that term is defined 
                in section 12(d) of the National Technology Transfer 
                and Advancement Act of 1995 (15 U.S.C. 272 note); or
                    ``(B) a voluntary consensus standard, as that term 
                is used for the purposes of Circular A-119.
            ``(4) Standards development organization.--The term 
        `standards development organization' means a holder of a 
        copyright under this title that plans, develops, establishes, 
        or coordinates voluntary consensus standards using procedures 
        that incorporate the attributes of openness, balance of 
        interests, due process, an appeals process, and consensus in a 
        manner consistent with the requirements of Circular A-119.
            ``(5) Publicly accessible online.--
                    ``(A) In general.--The term `publicly accessible 
                online', with respect to material, means that the 
                material is displayed for review in a readily 
                accessible manner on a public website.
                    ``(B) Rule of construction.--If a user is required 
                to create an account or agree to the terms of service 
                of a website or organization in order to access 
                material online, that requirement shall not be 
                construed to render the material not publicly 
                accessible online for the purposes of subparagraph (A), 
                if there is no monetary cost to the user to access that 
                material.
    ``(b) Standards Incorporated by Reference Into Law or Regulation.--
A standard to which copyright protection subsists under section 102(a) 
at the time of its fixation shall retain such protection, 
notwithstanding that the standard is incorporated by reference, if the 
applicable standards development organization, within a reasonable 
period of time after obtaining actual or constructive notice that the 
standard has been incorporated by reference, makes all portions of the 
standard so incorporated publicly accessible online at no monetary 
cost.
    ``(c) Burden of Proof.--In any proceeding in which a party asserts 
that a standards development organization has failed to comply with the 
requirements under subsection (b) for retaining copyright protection 
with respect to a standard, the burden of proof shall be on the party 
making that assertion to prove that the standards development 
organization has failed to comply with those requirements.''.
    (b) Technical and Conforming Amendment.--The table of sections for 
chapter 1 of title 17, United States Code, is amended by adding at the 
end the following:

``123. Works incorporated by reference into law.''.
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