    [House Hearing, 119 Congress]
    [From the U.S. Government Publishing Office]

                      PROTECTING U.S. LEADERSHIP IN CODES
                    DEVELOPMENT AND ENHANCING PUBLIC ACCESS
    =======================================================================

                                    HEARING

                                   BEFORE THE

                      SUBCOMMITTEE ON COURTS, INTELLECTUAL
                     PROPERTY, ARTIFICIAL INTELLIGENCE, AND
                                  THE INTERNET

                                     OF THE

                           COMMITTEE ON THE JUDICIARY

                         U.S. HOUSE OF REPRESENTATIVES

                        ONE HUNDRED NINETEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                            TUESDAY, APRIL 21, 2026

                                   __________

                               Serial No. 119-64

                                   __________

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                   Available via: http://judiciary.house.gov

                                 __________

                       U.S. GOVERNMENT PUBLISHING OFFICE
    63-529			  WASHINGTON : 2026
    =======================================================================

                           COMMITTEE ON THE JUDICIARY

                            JIM JORDAN, Ohio, Chair

    DARRELL ISSA, California             JAMIE RASKIN, Maryland, Ranking
    ANDY BIGGS, Arizona                      Member
    TOM McCLINTOCK, California           JERROLD NADLER, New York
    THOMAS P. TIFFANY, Wisconsin         ZOE LOFGREN, California
    THOMAS MASSIE, Kentucky              STEVE COHEN, Tennessee
    CHIP ROY, Texas                      HENRY C. ``HANK'' JOHNSON, Jr.,
    SCOTT FITZGERALD, Wisconsin              Georgia
    BEN CLINE, Virginia                  TED LIEU, California
    LANCE GOODEN, Texas                  PRAMILA JAYAPAL, Washington
    JEFFERSON VAN DREW, New Jersey       J. LUIS CORREA, California
    TROY E. NEHLS, Texas                 MARY GAY SCANLON, Pennsylvania
    BARRY MOORE, Alabama                 JOE NEGUSE, Colorado
    HARRIET M. HAGEMAN, Wyoming          LUCY McBATH, Georgia
    LAUREL M. LEE, Florida               DEBORAH K. ROSS, North Carolina
    WESLEY HUNT, Texas                   BECCA BALINT, Vermont
    RUSSELL FRY, South Carolina          JESUS G. ``CHUY'' GARCIA, Illinois
    KEVIN KILEY, California              SYDNEY KAMLAGER-DOVE, California
    GLENN GROTHMAN, Wisconsin            JARED MOSKOWITZ, Florida
    BRAD KNOTT, North Carolina           DANIEL S. GOLDMAN, New York
    MARK HARRIS, North Carolina          JASMINE CROCKETT, Texas
    ROBERT F. ONDER, Jr., Missouri       Vacancy
    DEREK SCHMIDT, Kansas
    BRANDON GILL, Texas
    MICHAEL BAUMGARTNER, Washington
                                     ------

                 SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY,
                   ARTIFICIAL INTELLIGENCE, AND THE INTERNET

                        DARRELL ISSA, California, Chair

    THOMAS MASSIE, Kentucky              HENRY C. ``HANK'' JOHNSON, Jr.,
    SCOTT FITZGERALD, Wisconsin              Georgia, Ranking Member
    BEN CLINE, Virginia                  ZOE LOFGREN, California
    LANCE GOODEN, Texas                  TED LIEU, California
    LAUREL LEE, Florida                  JOE NEGUSE, Colorado
    KEVIN KILEY, California              DEBORAH ROSS, North Carolina
    RUSSELL FRY, South Carolina          SYDNEY KAMLAGER-DOVE, California
    MICHAEL BAUMGARTNER, Washington      Vacancy

                   CHRISTOPHER HIXON, Majority Staff Director
                    ARTHUR EWENCZYK, Minority Staff Director

                                C O N T E N T S

                                  ----------

                            Tuesday, April 21, 2026

                               OPENING STATEMENTS

                                                                       Page
    The Honorable Darrell Issa, Chair of the Subcommittee on Courts,
      Intellectual Property, Artificial Intelligence, and the
      Internet from the State of California..........................     1
    The Honorable Henry C. ``Hank'' Johnson, Ranking Member of the
      Subcommittee on Courts, Intellectual Property, Artificial
      Intelligence, and the Internet from the State of Georgia.......     3
    The Honorable Jim Jordan, Chair of the Committee on the Judiciary
      from the State of Ohio.........................................     5
    The Honorable Deborah K. Ross, a Member of the Subcommittee on
      Courts, Intellectual Property, Artificial Intelligence, and the
      Internet from the State of North Carolina......................     5

                                   WITNESSES

    James Pauley, President, CEO, National Fire Protection
      Association
      Oral Testimony.................................................     7
      Prepared Testimony.............................................     9
    Keith Kupferschmid, CEO, Copyright Alliance
      Oral Testimony.................................................    17
      Prepared Testimony.............................................    19
    John Delli Venneri, General Counsel, American Society of
      Mechanical Engineers
      Oral Testimony.................................................    27
      Prepared Testimony.............................................    29
    Jonathan Band, Principal, Policybandwidth, behalf of Library
      Copyright Alliance
      Oral Testimony.................................................    34
      Prepared Testimony.............................................    36

              LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING

    All materials submitted for the record by the Subcommittee on
      Courts, Intellectual Property, Artificial Intelligence, and the
      Internet are listed below......................................    64

    Materials submitted by the Honorable Zoe Lofgren, a Member of the
      Subcommittee on Courts, Intellectual Property, Artificial
      Intelligence, and the Internet from the State of California,
      for the record
        Assorted letters entitled, ``Oppose the PRO Codes Act (HR
            1631) to Protect Public Access to the Law,'' from the
            Honorable Zoe Lofgren from the State of California, and
            the Honorable Thomas Massie from the State of Kentucky,
            and Members of Congress, Jul. 22, 2024; a letter
            entitled,``Dissenting View on H.R. 1631, the PRO Codes
            Act,'' from the Honorable Zoe Lofgren from the State of
            California; a letter entitled, ``Opposition to the Pro
            Codes Act,'' to the Honorable Mike Johnson, Speaker of
            the House, the Honorable Hakeem Jeffries, Democratic
            Leader, from several organizations, Jul. 19, 2024; a
            letter entitled, ``Opposition to H.R. 1631, the
            `Protecting and Enhancing Public Access to Codes Act'
            (Pro Codes Act),'' to the Honorable Jim Jordan, Chair
            from the State of Ohio, and the Honorable Jerry Nad-ler,
            Ranking Member from the State of New York, the Committee

    Materials submitted by the Honorable Zoe Lofgren, a Member of the
      Subcommittee on Courts, Intellectual Property, Artificial
      Intelligence, and the Internet from the State of California,
      for the record--Continued
            on the Judiciary, from several organizations, Apr. 9,
            2024; and a letter to the Honorable Mike Johnson,
            Speaker, and the Honorable Hakim Jefferies, Democratic
            Leader, from SAE International, in opposition to H.R.
            1631/S. 835, the Pro Codes Act, July 18, 2024
        An Amicus Brief, The American Society for Testing Materials,
            et al. v. Public.Resource.Org, Inc., Dec. 12, 2022
        A letter to the Honorable Darrell Issa, Chair from the State
            of California, and the Honorable Henry C. ``Hank''
            Johnson, Ranking Member from the State of Georgia, the
            Subcommittee on Courts, Intellectual Property, Artificial
            Intelligence, and the Internet, from the R Street
            Institute, Apr. 20, 2026
        An Amicus Brief on Appeal, The American Society for Testing
            Materials, et al. v. Public.Resource.Org, Inc., Members
            of Congress, Sept. 25, 2017
        A letter to the Honorable Darrell Issa, Chair of the
            Subcommittee on Courts, Intellectual Property, Artificial
            Intelligence, and the Internet from the State of
            California, the Honorable Henry C. ``Hank'' Johnson,
            Ranking Member of the Subcommittee on Courts,
            Intellectual Property, Artificial Intelligence, and the
            Internet from the State of Georgia, and Members of the
            Subcommittee on Courts, Intellectual Property, Artificial
            Intelligence, and the Internet, from Brandon Butler,
            Executive Director, Re:Create, Apr. 20, 2026
        A letter to the Honorable Darrell Issa, Chair of the
            Subcommittee on Courts, Intellectual Property, Artificial
            Intelligence, and the Internet from the State of
            California, the Honorable Henry C. ``Hank'' Johnson,
            Ranking Member of the Subcommittee on Courts,
            Intellectual Property, Artificial Intelligence, and the
            Internet from the State of Georgia, and Members of the
            Subcommittee on Courts, Intellectual Property, Artificial
            Intelligence, and the Internet, from Adam Eisgrau, Senior
            Director, AI, Creativity, and Copyright Policy at the
            Chamber of Progress, Apr. 17, 2026
        An opinion, U.S. Court of Appeals for the Third Circuit in
            American Society for Testing & Materials, d/b/a ASTM
            International v. Upcodes, Inc.; Garrett Reynolds; Scott
            Reynolds, Apr. 7, 2026
        A document entitled, ``Am. Soc'y for Testing & Materials v.
            Public.
            Resource.Org, Inc. 82 F.4th 1262 (D.C. Cir. 2023),'' 2023
        An article entitled, ``Court Rules in Favor of Public Access
            to Information,'' Apr. 13, 2026, Association of Research
            Libraries (ARL)
        An article entitled, ``D.C. Circuit Court of Appeals Holds
            Non-Commercial Use of Industry Standards Incorporated
            into Law Is Fair Use,'' Sept. 18, 2023, Husch Blackwell
        An Appeal document, American Society for Testing and
            Materials, et al. v. Public.Resource.Org, Inc., United
            States Court of Appeals, District of Columbia Circuit,
            Sept. 12, 2023
        A document on Pro Codes Case Law
        An article entitled, ``Publisher of industry standards loses
            appeal over startup's fair-use defense,'' Apr. 9, 2026,
            Westlaw Today
        A document entitled, ``Frequently Asked Questions,'' Pro
            Codes Act
        Pages entitled, ``International Code Council Inc.,''
            ProPublica
        Pages entitled, ``National Fire Protection Association,''
            ProPublica
    Materials submitted by the Honorable Darrell Issa, Chair of the
      Subcommittee on Courts, Intellectual Property, Artificial
      Intelligence, and the Internet from the State of California
        Support letters entitled, ``H.R. 4072--Pro Codes Act Support
            Letters,'' International Code Council Chapter and
            Governmental Members, and various organizations
        A statement from Advancing Standards Transforming Markets
            International (ASTM), Apr. 21, 2026
        A letter from Frank Cullen, Executive Director, Council for
            Innovation Promotion (C4IP), Apr. 20, 2026
        A letter from Adam Eisgrau, Senior Director, AI, Creativity,
            and Copyright Policy at the Chamber of Progress, Apr. 17,
            2026
        A letter from Alpesh Shah, Managing Director, IEEE Standards
            Association, and Russell Harrison, Managing Director,
            IEEE-USA, Apr. 20, 2026
        An IRS Form 990, ``Return of Organization Exempt from Income
            Tax,'' 2022, Public Resource Organization, Inc.
        An IRS Form 990, ``Return of Organization Exempt from Income
            Tax,'' 2023, Public Resource Organization, Inc.
        An IRS Form 990, ``Return of Organization Exempt from Income
            Tax,'' 2024, Public Resource Organization, Inc.
        A letter from Wayne Brough, Resident Senior Fellow, R Street
            Institute, Apr. 20, 2026
        Pricing from UpCodes
        A statement from Shawn Griffin, Chief Executive Officer,
            President, URAC, Apr. 21, 2026
        A document entitled, ``B.5.11.1 Iron-Air Batteries.''

                                    APPENDIX

    Questions submitted by the Honorable Darrell Issa, Chair of the
      Subcommittee on Courts, Intellectual Property, Artificial
      Intelligence, and the Internet from the State of California,
      for the record
        Questions for Keith Kupferschmid, CEO, Copyright Alliance,
        Questions for John Delli Venneri, General Counsel, American
          Society of Mechanical Engineers
          Responses to questions from John Delli Venneri, General
            Counsel, American Society of Mechanical Engineers
        Questions for Jonathan Band, Principal, Policybandwidth,
          behalf of Library Copyright Alliance
          Responses to questions from Jonathan Band, Principal,
            Policy-band-width, behalf of Library Copyright Alliance
    Questions for James Pauley, President, CEO, National Fire
      Protection Association, submitted by the Honorable Darrell
      Issa, Chair of the Subcommittee on Courts, Intellectual
      Property, Artificial Intelligence, and the Internet from the
      State of California. and the Honorable Ben Cline, a Member of
      the Subcommittee on Courts, Intellectual Property, Artificial
      Intelligence, and the Internet from the State of Virginia, for
      the record
          Responses to questions from James Pauley, President, CEO,
            National Fire Protection Association

                         PROTECTING U.S. LEADERSHIP IN
                 CODES DEVELOPMENT AND ENHANCING PUBLIC ACCESS

                                  ----------

                            Tuesday, April 21, 2026

                            House of Representatives

               Subcommittee on Courts, Intellectual Property, and

                   Artificial Intelligence, and the Internet

                           Committee on the Judiciary

                                 Washington, DC

        The Subcommittee met, pursuant to notice, at 10:07 a.m., in
    Room 2141, Rayburn House Office Building, the Hon. Darrell Issa
    [Chair of the Subcommittee] presiding.
        Present: Representatives Issa, Jordan, Fitzgerald, Gooden,
    Lee, Fry, Johnson, Raskin, Lofgren, and Ross.
        Also present: Representative Kiley.
        Mr. Issa. The Subcommittee will come to order. Without
    objection, the Chair is authorized to declare a recess at any
    time.
        We welcome everyone here today for a hearing on codes and
    standards development and public access.
        Without objection, Mr. Kiley, when he arrives, will be able
    to participate in today's hearing for the purpose of
    questioning the witnesses and will receive five minutes for
    that purpose.
        I now recognize myself for an opening statement.
        Earlier in the back, I welcomed everyone to Ground Hog Day
    because it is seldom that we have a bill that wins
    overwhelmingly on the House floor by nearly two-thirds, having
    had full hearings and markups, having some of what you see on
    the screen, the 8,000-plus entities that helped create what we
    often call the building codes. In fact, these how-to manuals,
    which are included by reference in many laws but, ultimately,
    are far more than simply statements of fact for the law.
        It was with some surprise that we found that we narrowly
    lost a suspension vote. We expect to come back again shortly.
    For that purpose, today's hearing will, in fact, try to cover
    some new information, if we possibly can, and particularly a
    new approach to explaining how we got here.
        James Madison, in fact, argued the need to grant limited
    terms of exclusive rights to inventors and authors, as he said
    in the Federalist 43. Ultimately, his argument became Article
    I, Section 8, Clause 8 of our Constitution.
        Let me be very clear, it does not bestow a right. There is
    no absolute right to copyright. There is no absolute right to
    patent. Those are creations, as our Constitution says, to
    promote progress of science and useful arts by securing for a
    limited time to authors and inventors that exclusive right to
    the respective writings and discoveries.
        That is so important today, because the bill that is being
    considered and will be back on the floor is a balance. How do
    we continue to have the promotion that causes over 8,000
    entities to work, in many cases completely as volunteers, to
    produce some of these great--and, of course, I'm using old
    books because most of its online today--but the building codes.
    More than the codes, building the how-to manuals, the what is
    right, what are the cautions, what should you know. These are
    educational books, broadly.
        Many say because they are included by reference, by cities,
    and others, that somehow that diminishes their legitimate
    copyright. For purposes of this bill, we have sought to find a
    middle ground. We have sought to say, because you must comply
    with the law and because municipalities and States often simply
    refer to a copyrighted material, that making that available for
    purposes of knowing what the law is referring to is reasonable.
        Just as a copy in the library is free to read, the bill
    that we propose makes it possible for you to, in fact, find out
    what that reference is, but it stops short of allowing you to
    simply make a xerox copy and include it with your application.
    It stops short of saying that all the information that helps
    you produce a better, safer product, to know the risk involved
    if you choose to do something one way versus another and so on
    is, in fact, still protected.
        That balance is not easy, but it is a balance that our
    Founders gave us. They gave us the responsibility to make this
    a promotion, to make it for a limited period of time, but, in
    fact, to make it ultimately available to the public. That's
    what we're doing here in this legislation.
        It's also a reflection. I serve on the Science Committee.
    Scientific works have had many of the same sort of comments,
    that there is somehow fact not something that is a work. Well,
    you're just stating what is science. When somebody discovers
    the genome, maps it, it was argued that shouldn't be patented.
    That argument fell short because, although we all have those
    genes in us, finding a way to map them, finding a way to create
    a useful work in science that has led to amazing development
    had to be promoted, and we are having the same situation here
    today.
        We have people today that will be testifying to who
    disagree, who believe that, in fact, everything should be free,
    and have a fairly diminished view of what a copyright is. They
    are entitled to that. We also have panelists that agree with
    the basic language of the bill, and we have panelists, some of
    them are from those 8,000 names you see scrolling here, who
    want more. They want an outright rejection of any use in the
    public domain. They don't want it to be available.
        Others, quite frankly, will argue that their association
    members are different, that they don't promote, even though
    they get included. Let me be clear. Having looked at that
    extensively, the taking by a city or a State or even the
    Federal Government and including it in a statutory requirement
    you comply with would have the exact same effect, an effect
    that says the public has a right to see the law.
        Mr. Massie will be here later, and I side with him and
    others on the dais in saying, if it becomes the law, you should
    be able to find it, see it at no cost. How that is facilitated
    is open to debate but not whether or not you should. For that
    reason I find it--and I'm not trying to be argumentative here,
    that comes later--I'm trying to make the point that it's moot
    whether you promote it to be in the law or it ends up in the
    law.
        Ultimately, we believe, on this side of the dais, that the
    American people have a right to see their laws. It doesn't mean
    they have a right to take it all, to use it, to resell it, and
    to monetize it. That's short of what you have with the law. For
    that reason, we have the grand compromise of H.R. 4072, the Pro
    Codes Act.
        We want to preserve copyright for a reason. If I were to
    stack up every book, many of them thicker than this one, that
    is produced by these 8,000 companies, we would have this dais
    filled. When you look at those books--and I'll ask some of the
    witnesses here today--when you look at those books carefully,
    you see some things that clearly look like the law, but you
    also see an amazing amount of information, warnings, how-tos,
    things that, in fact, would be in any good manual.
        We are not in another country. In the U.S., we go it our
    own way. I want to be clear. Reference to other countries and
    how they do it really doesn't matter, and it doesn't matter
    because America is where we are because of our respect and
    balance for intellectual property.
        Last, I'll close with this and recognize the Ranking
    Member--there are those who will argue that once something is
    fact and everyone knows it's not copyrightable. For those like
    me who love to cook, does that mean that when Betty Crocker
    tells you how to make cookies and she gives a set of
    ingredients, and those are the same ingredients and sometimes
    the exact same measurements that other recipes have, that
    somehow the Betty Crocker book should not be copyrighted and
    anyone should be able to monetize it while it's still under
    copyright?
        I disagree that is the reason that it was so important to
    have a second hearing to make it clear that when this goes to
    the floor, this will be a statement by the U.S. Congress that
    we believe in those original principles of promoting while
    balancing these works of these authors.
        With that, I recognize the Ranking Member for his opening
    statement.
        Mr. Johnson. Thank you, Mr. Chair, and thank you to the
    witnesses for your appearances today for this very important
    hearing.
        When I get home to Georgia after a long week, I get off the
    plane, take the airport rail to my car, and pick up my car from
    the parking area. Once I get home, I park the car, walk into my
    house, and cut the lights on. I might fix some hot tea after
    pouring some water and heating it up in the microwave. I rarely
    think about it, but all these steps from the airport to my
    house are governed by codes, developed by standards developing
    organizations, or SDOs.
        Standards governing everything from light rail and parking
    garages to home fire codes and water piping touch each of us in
    our everyday lives. When a contractor works on your house or a
    firefighter inspects your workplace for fire safety, they have
    to consult their respective codes. While most of us know that
    these codes exist, we rarely consider where those codes come
    from.
        An important part to you and me is that the standards in
    those codes work. They keep us safe. They keep our lives
    running with us none the wiser.
        SDOs regularly get together and come up with the state-of-
    the-art guidelines for their trades. These best practices
    govern everything from consumer safety and household utility
    installation to home electrical wiring and plumbing. SDOs make
    sure your house won't catch on fire, your plumbing is up to
    code, your water boiler is installed correctly, and everything
    in between.
        If you live in an area that might be affected by floods or
    by earthquakes, you want to ensure your house is built to
    withstand natural disasters. You rely on your local contractor,
    and your contractor relies on their SDO standards.
        Now, so far as this sounds like a great hearing for the
    Transportation and Infrastructure Committee, which I also serve
    on, the reason why this is in the Intellectual Property
    Subcommittee of Judiciary is because this Subcommittee cares
    about standards, and it's because of a recent circuit court
    decision--actually, recent court decisions that have made it
    harder for SDOs to assert their copyright when others post
    their codes online.
        States and local governments frequently adopt SDO-developed
    codes by reference into law. They do this for a few reasons but
    primarily because the government doesn't have the funds to
    employ experts to develop a unique building code and do not
    update the law often enough to keep up with the changes of
    society and in best practices.
        Georgia, for example, can refer to the National Fire
    Protection Association's most updated--or up-to-date code in
    their laws. That way the law is always up to date, and they
    don't have to pay experts to develop something new. This is the
    point where intellectual property issues arise.
        Some point to the Supreme Court's Georgia v.
    Public.Resource. Org decision and say, quote, ``that no one
    owns the law.'' If you can't access the code, you don't know
    what the law says, and Americans have a reasonable interest in
    knowing they can access the laws that govern them.
        Others point out that SDOs fund their work by selling their
    copyrighted material to experts who use it to make necessary
    evaluations, repairs, and installations. Without this rigorous
    development and dedication to constant improvement, they argue
    American standards would fall behind.
        We find ourselves in a dilemma. Once the code is law, it
    seems only reasonable that Americans should be able to figure
    out what the law says. On the other hand, SDOs fund their work,
    which we rely on to keep us safe, through the sale of their
    copyrighted works. We also have an interest in ensuring these
    codes always reflect the highest possible standards, and they
    can't do that without income or revenue.
        Multiple circuit court decisions have found that
    publication of codes incorporated by reference is fair use. If
    we want to ensure that SDOs retain their copyright, legislation
    is necessary. The question is, what kind of legislation?
        Last Congress, I voted in favor of the Pro Codes Act, but
    at the time I expressed concern that we hadn't had a fact-
    finding hearing to listen to all the different sides to this
    issue. I understand that there are quite a few different
    perspectives represented here, and I commend my colleague,
    Chair Issa, for working with me to put together a panel of
    witnesses that can speak to the many facets of the copyright
    problems with incorporation by reference.
        I look forward to hearing from the witnesses, and I yield
    back the remainder of my time.
        Mr. Issa. I thank the Chair--or the Ranking Member. I now
    recognize the Chair of the Full Committee, Mr. Jordan.
        Chair Jordan. I just want to thank the Chair for this
    hearing, for our witnesses who are here today, and for the
    Chair's persistence in trying to get this legislation across
    the finish line.
        With that, I would yield back.
        Mr. Issa. I thank the gentleman. I now recognize the
    Ranking Member, the gentleman from Maryland, Mr. Raskin.
        Mr. Raskin. Thank you, Chair Issa. Thanks to all our
    witnesses for joining us today.
        We have got two competing principles in play today, both of
    them deeply rooted in our constitutional culture, and one of
    them is the protection and incentivization of creators through
    copyright, and the other is the idea that public laws must be
    available to the public on a universally accessible and free
    basis.
        The Pro Codes Act introduced by the distinguished Chair,
    Mr. Issa, and our esteemed colleague, Representative Ross,
    seeks to reconcile these principles by promoting innovation
    alongside a legal system that the public can access. I
    recognize there's no shortage of strong, divergent opinions on
    all sides of this issue, sometimes held by the exact same
    person, as people change their minds over time about this
    question, which sometimes can seem kind of esoteric. It's
    incumbent on this Committee to study the details here where the
    answer is going to lie.
        We've got to be sure that we are reconciling these two
    principles. The devil's in the details, Mr. Chair, and I look
    forward to hearing from our excellent witnesses today.
        Mr. Issa. Would the Ranking Member mind yielding just a
    moment to the coauthor of the bill, Ms. Ross?
        Mr. Raskin. By all means. Ms. Ross has arrived. Please,
    happy to yield to you.
        Ms. Ross. OK. Thank you so much for that, Mr. Chair and the
    Ranking Member, and thank you to our witnesses for being here.
        I think it is very important that we have a full and robust
    conversation about this issue. Representative Issa and I have
    been through this in Committee. We've had a markup in
    Committee, but we haven't had this kind of philosophical debate
    with outside folks coming in. I'm really glad that we're doing
    that.
        I do want to let people know who may be tuning in to this
    for the first time, last Congress, there was a lot of activity
    on this bill, and there were a lot of changes made with the
    input of people who had ideas for how to improve public access,
    particularly input from the disability community, and I
    sponsored those amendments.
        When I get my opportunity to ask our witnesses some
    questions, you'll hear a little bit more about how I view this,
    but I do think that the bill in its current form has only been
    getting better and fairer and more inclusive of the public,
    while protecting the intellectual property of the people who
    have put their blood, sweat, and tears in it and promote our
    safety.
        It will give that kind of balance and, I hope, encourage
    the people who have been doing this amazing work on these codes
    for decades the incentive to keep doing their work and keeping
    the public safe while providing that access to people who need
    to know what's in the law.
        Thank you so much, Mr. Chair, and I look forward to the
    discussion.
        Mr. Issa. Thank you. The Ranking Member yields back. We now
    introduce our panel of experts for their opening statements.
        We begin with Mr. James Pauley. Mr. Pauley is President and
    Chief Executive Officer of the National Fire Protection
    Association, a nonprofit association that develops standards
    and codes related to fire prevention. The NFPA also engages in
    research, training, education, outreach, and advocacy.
        Mr. Keith Kupferschmid is the President and Chief Executive
    Officer of the Copyright Alliance, a nonprofit organization
    that advocates on behalf of creators and innovators. He
    previously served as the General Counsel and Senior Vice
    President for intellectual property at the Software and
    Information Industry Association.
        Mr. John Delli Venneri is the General Counsel at the
    American Society of Mechanical Engineers, ASME, a professional
    association for mechanical engineers. The ASME develops codes
    and standards and provides professional resources like
    publications, conferences, continuing education, professional
    development, and resources to its members.
        Mr. Jonathan Band is an attorney and advocate who works on
    matters related to intellectual property. Today, he is
    representing the Library Copyright Alliance, which consists of
    American Library Associations and Associations of Research
    Libraries. Both organizations consist of librarians and
    research librarians.
        We welcome all our witnesses and thank you for appearing
    here today.
        As I said earlier, we have a--and Ms. Ross said very well--
    we have a well-balanced group that we believe represent the
    entire spectrum of those involved in this issue.
        Pursuant to the Committee rules, I would ask that all
    witnesses rise to be sworn in, and raise your right hand.
        Do you solemnly swear or affirm under penalty of perjury
    that the testimony you're about to give will be true and
    correct to the best of your knowledge, information, and belief,
    so help you God?
        Thank you. Please be seated.
        Let the record reflect that all witnesses answered in the
    affirmative.
        Mr. Pauley, we'll go from your side to that side, if that's
    all right. You know the routine here, five minutes. We're not
    going to cut you off mid-sentence, but please stay as close to
    that so we can have plenty of time for questions.
        The gentleman's recognized.

                       STATEMENT OF JAMES PAULEY

        Mr. Pauley. Chair Issa, Ranking Member Johnson, and the
    distinguished Members of the Subcommittee, thank you for this
    opportunity to testify today. My name is Jim Pauley. I'm the
    President and CEO of the National Fire Protection Association.
        I want to start today with a number: 54 percent. That's how
    much fire incidents have declined in this country since 1980.
    Home fire deaths over that same time period are down 44
    percent. Now, those numbers didn't happen by chance. They
    happened because of rigorous safety standards developed by
    independent nonprofit organizations like National Fire
    Protection Association (NFPA), and they represent the lives
    saved, the families spared, and the disasters prevented.
        Now, for nearly 130 years, the NFPA has developed codes and
    standards that protect lives and property from fire,
    electrical, and life safety challenges. We develop and update
    more than 300 of these in an open, transparent, and consensus-
    based process. These standards are used by a wide range of
    stakeholders: Insurance companies, manufacturers, contractors,
    designers, and government.
        We don't develop them for any one group. We also don't take
    money from industries that are affected by our standards, and
    we don't rely on taxpayer funding to create them. We fund this
    work by selling our standards to the professionals who use
    them. That's the copyright model at work, and it's produced one
    of the most successful public--private partnerships in American
    history.
        The need for this system, it's accelerating. From
    devastating wildfires to new risk from lithium-ion batteries,
    the NFPA is developing standards to address challenges that
    didn't exist just 10 years ago, not to mention our efforts to
    continuously update the hundreds of critical existing standards
    like the National Electrical Code that has protected Americans
    for generations.
        Now, don't take my word that the system is working.
    Governments at every level regularly turn to the work of
    nonprofit standards developers because that work can be
    trusted. There are tens of thousands of incorporations by
    reference across American law and regulation. Every home, every
    school, and every office building. Americans benefit from these
    standards whether they know it or not.
        I want to be clear about something. Government comes to us,
    not the other way around. When lawmakers and regulators are
    trying to solve a safety problem, they turn to organizations
    like NFPA because they value what it is that we can provide.
    Those solutions only exist if the system that produces them can
    be independently funded. If you take away copyright protection,
    the funding disappears and, with it, the system that has made
    Americans safer for more than a century.
        That's where the Pro Codes Act comes in. This bipartisan
    bill reaffirms the copyright protections for standards
    incorporated by reference while promoting transparency for the
    public.
        Now, I know the Subcommittee will hear from critics of the
    legislation, and I'd like to address some of those claims
    directly. Most common is that the Pro Codes Act puts the law
    behind a pay wall. Codes and standards are not the law. They
    are privately authored works created by independent nonprofits
    to solve safety problems. Governments recognize their value and
    choose to reference them, but that doesn't make them the
    government's work.
        Others argue that Congress doesn't need to worry about
    this, that the courts are handling this just fine. Records say
    otherwise. Lower Federal courts have reached inconsistent
    conclusions without definitive resolution. This is a policy
    question, and the Constitution commits that policy question to
    Congress.
        Then there's the argument that none of this matters because
    the SDOs have not gone out of business. I believe this misses
    the point entirely.
        The current system is like a dam, and the court decisions
    are putting cracks in that dam, and those of us downstream,
    right now it's just our feet that are wet, but if Congress
    waits for the dam to break, we can't come back from this.
        There's no alternative that is nearly as effective. Other
    models, standards that are written by government or by
    industry, either force taxpayers to foot the bill or let the
    regulated industries write their own standards.
        Every year, the standards that NFPA and organizations like
    us develop prevent tragedies that no one will ever hear about:
    Fires that don't start, buildings that don't collapse, and
    families that come home safe. That's what we stand to lose if
    Congress doesn't act.
        I urge you to pass the Pro Codes Act and ensure that the
    system that has protected Americans for more than a century can
    continue to do so. Thank you and I look forward to your
    questions.
        [The prepared statement of Mr. Pauley follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Issa. Thank you. Mr. Kupferschmid.

                    STATEMENT OF KEITH KUPFERSCHMID

        Mr. Kupferschmid. Chair Issa, Ranking Member Johnson, and
    the distinguished Members of the Subcommittee, thank you for
    holding this hearing and for inviting me to testify on this
    very, very important issue.
        In addition to over two million individual creators that we
    represent, the Copyright Alliance also represents the copyright
    interest of motion picture studios, record labels, and
    publishers of books, music, and newspapers, to name just a few,
    that are commonly associated with copyright.
        We also represent organizations that the typical person may
    not associate with copyright but who, likewise, rely heavily on
    its protections for their businesses. One such group is
    standard development organizations, or SDOs for short.
    Importantly, we also represent numerous organizations that use
    and license these standards.
        The urgent issue we are here to discuss today is how we
    could ensure that high-quality copyrightable standards continue
    to be developed and updated while also promoting public access
    to those standards when they are incorporated by reference into
    the law, or IBR'd for short. When a standard is IBR'd, the
    public should have access to that standard.
        To be clear, that access is being provided today. Standards
    are widely available. They're available for free online and for
    reasonable prices via print and through subscription.
    Significantly, there is absolutely no record of individuals not
    being able to access these standards.
        The cases that have been litigated all involve either
    commercial enterprises, like UpCodes, or ideological
    organizations like public resources, not individuals. While
    UpCodes and public resources claim they are promoting public
    access, the records of these cases do not reflect any true lack
    of access or availability.
        As to the copyrightability part of the issue, I've not
    heard anyone suggest that the standards are not protected by
    copyright on creation. There is no existing copyright doctrine
    under which standards would or should lose their copyright
    protection when they are IBR'd. In other words, IBR'd standard
    presents a totally unique issue, one in which the courts are
    ill-fitted to solve.
        Litigation in Federal courts has created uncertainty
    regarding the copyright status of standards that have been
    IBR'd. This lack of clarity and misapplication of law threatens
    to destabilize the entire standards development ecosystem.
    Moreover, when these courts misapply standards for
    copyrightability or fair use, the resulting analysis and
    decision by these courts have a ripple effect that harms not
    only SDOs but also has the potential to harm many other
    copyright owners.
        Congress, not the courts, is best positioned to establish a
    consistent and fair approach to this issue. Only Congress can
    address this tension by interpreting the law as it is written
    and setting the record straight when courts misinterpret the
    law and stretch it in ways that are unbalanced, unfair, and
    misguided.
        The Pro Codes Act attempts to directly address this tension
    by ensuring that the public has access to standards that are
    IBR'd without cost while clarifying the copyright protections
    that make the development of these standards possible in the
    first place.
        The benefits of this approach are substantial and far
    reaching.
        First, it preserves the incentives that drive the creation
    of high-quality standards. By maintaining copyright protection,
    the Act would ensure that SDOs can continue to fund their
    operation, to invest in research and development, and to update
    standards to reflect new technologies and best practices.
        Second, it promotes public access. Anyone who must use
    these standards will be able to view the relevant standard
    online at no cost. This enhances transparency.
        Third, it benefits taxpayers and governments. Without this
    system, the burden of developing complex, technical standards
    would likely fall on government agencies, requiring significant
    public funding and the creation of new bureaucratic
    infrastructure.
        Fourth, it supports effective governance. Legislators and
    regulators can continue to rely on expert-developed standards,
    rather than attempting to replicate that expertise within the
    government, a task that they are ill-suited for and would be
    both costly and ineffective.
        In conclusion, the Pro Code Act represents a pragmatic
    middle ground. It does not require choosing between public
    access and copyright protection. Instead, it achieves both. It
    ensures that the public can access standards when IBR'd, while
    preserving a system that produces the law's technical content.
    This is the kind of legislative solution that is most
    effective, one that recognizes the legitimate interest on all
    sides and crafts a balanced approach while also serving the
    broader public good.
        The timing of this legislation is critical. Courts are
    actively grappling with these issues, and the risk of divergent
    and incorrect interpretations is real. Acting now allows
    Congress to provide guidance before a patchwork of conflicting
    decisions take hold. For these reasons, I respectfully urge
    this Subcommittee to advance the Pro Codes Act in some form.
        Thank you for your time and consideration. I look forward
    to answering your questions.
        [The prepared statement of Mr. Kupferschmid follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Issa. Thank you. Mr. Delli Venneri.

                    STATEMENT OF JOHN DELLI VENNERI

        Mr. Delli Venneri. Chair Issa, Ranking Member Johnson, and
    the Members of the Subcommittee, thank you for the opportunity
    to testify today. I'm John Delli Venneri, General Counsel of
    the American Society of Mechanical Engineers, abbreviated as
    ASME.
        ASME is a 501(c)(3) nonprofit standards development
    organization, commonly referred to as an SDO, that has served
    the engineering profession and the public since 1880. Broadly
    speaking, our standards help ensure that construction cranes do
    not collapse, nuclear facilities do not fail, oil and gas
    pipelines do not rupture, and the turbines used in civilian and
    defense applications are cutting edge.
        ASME's flagship boiler and pressure vessel code--here I
    have one volume out of 33--is used by manufacturers as a
    foundation for many civilian and defense technologies.
        The Pro Codes Act harms ASME's copyright and that of other
    SDOs materially, perhaps existentially. It does so by
    fundamentally reshaping copyright law to benefit a single type
    of SDO while eroding the copyrights of others. Because of this,
    nobody should make the blank statement that this bill is
    universally good for copyright because it isn't good for ASME's
    copyright and other SDOs like it.
        Let me make three points to demonstrate this:
        First, the Pro Codes Act picks winners and losers.
        Second, it weakens U.S. national security and leadership
    and standards development at a time of increasing geopolitical
    competition.
        Third, it rewrites fundamental copyright law by introducing
    the concept of a conditional copyright.
        First, this bill is a mandate that picks winners and
    losers. The scope of this bill is broad. The standards ASME is
    trying to protect are not local building and fire standards.
    The standards that I'm asking this Committee to protect are
    broader in scope, aimed at a different audience and used in a
    different way.
        The operation of the Pro Codes Act is automatic. There's no
    due process attached anywhere to this legislation. There's no
    limit to the number of codes that can be incorporated by
    reference or how many of these codes can be referenced. Here is
    an important point: Under current copyright law, a standards
    holder has no way of preventing incorporation by reference.
        To put things simply, the Pro Codes Act has no mechanism to
    distinguish between the standards of a set of rules for the
    erection of a carport and a set of differential equations used
    by nuclear engineers to design a safe, small, and modular
    nuclear reactor. This is not to suggest that these other
    standards do not play an important role in our society, but
    that is why organizations like ASME and the Society of
    Automotive Engineers oppose this bill.
        Second, the Pro Codes Act risks national security and
    leadership and standards development. Technological standards
    are not simply a set of rules. They enable the development of
    cutting-edge technology that is safe, repeatable, and
    interoperable.
        The United States leads the world in standards development
    because of a system built on private sector expertise,
    voluntary consensus, and sustained investment. Because of ASME
    and other organizations like us who create complex standards,
    the United States leads the world in technologic and scientific
    innovation. In a new geopolitical world where rival countries
    have recognized that standards can be used to affect how
    technology evolves, we should not cede this important U.S.
    leadership role.
        Third, the Pro Codes Act fundamentally changes the law of
    copyright, rendering it contingent on the decisions of any
    governmental body. Copyright has long provided creators with
    exclusive defined rights, including the ability to control the
    distribution of their works. The Pro Codes Act fundamentally
    changes that framework. It now interjects an entirely new
    concept of copyright, which is conditioned on the decisions of
    government. The result is force publication--force public
    distribution of privately developed works, without
    compensation. This is not protection. It's compelled
    forfeiture.
        In conclusion, the Pro Codes Act is presented as a balanced
    solution. It is not. It's a mandate that, (1) picks winners and
    losers; (2) weakens U.S. national security and leadership in
    standards development; and (3) fundamentally rewrites copyright
    law to erode, not protect, copyright.
        If Congress is going to pass legislation, it must not
    contort the law to protect one set of private actors while
    potentially destroying others. I ask this Committee to reject
    the Pro Codes Act.
        Thank you, and I look forward to your questions.
        [The prepared statement of Mr. Delli Venneri follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Issa. Thank you. Mr. Band.

                       STATEMENT OF JONATHAN BAND

        Mr. Band. Chair Issa, Ranking Member Johnson, and the
    Members of the Subcommittee, thank you for the opportunity to
    share the library perspective on the Pro Codes Act.
        I represent the Library Copyright Alliance. Today, I'll
    discuss our concerns with pro codes and how it interferes with
    public access to the law, then I'll propose a better way
    forward: Governments directly incorporating standards into the
    law rather than just incorporating them by reference.
        Libraries are strongly committed to the government edicts
    doctrine, the principle that no one can own the law. We believe
    that once a portion of a standard is incorporated into the law,
    whether directly or by reference, that portion enters into the
    public domain and can be posted freely online. Pro codes are an
    attempt to reverse the government edicts doctrine in a narrow
    but significant way by affirming copyright ownership over IBR
    standards.
        I have four points concerning pro codes.
        First, pro codes are unconstitutional. The government
    edicts doctrine is rooted in the Constitution. Allowing a
    private entity exclusive ownership of the law would run
    contrary to the rights of free expression and due process.
        I acknowledge the bill's attempt to limit its adverse
    effect by requiring a degree of public access, but this public
    access requirement is insufficient to cure the bill's
    constitutional infirmity. The bill does not require the full
    text of the public access version to be searchable,
    downloadable, or reproducible. The bill would still interfere
    with a person's ability to understand and comment on their
    legal obligations.
        Second, pro codes would limit public access to the law.
    Because of the limited read-only nature of its public access
    requirement, pro codes would make it difficult for members of
    the public to access the law in IBR situations. Also, the Act
    would codify existing restrictive practices of SDOs that
    require users to create an account and agree to terms of
    service to access the material online. The net result is the
    bill would restrict public awareness of the law, escalate the
    cost of homeownership by increasing costs to builders, and
    inhibit commentary and criticism, among other negative impacts.
        Third, pro codes are based on an incorrect premise. The
    basic premise of pro codes is that without the incentive
    provided by copyright, SDOs would not undertake the costly
    standard development process. This premise is incorrect. In the
    vast majority of cases, industry participants have an economic
    incentive to participate in the development of standards.
    Often, SDOs lobby government entities to adopt their standards
    as law. In the absence of copyright protection, SDOs would
    still develop standards and then request government entities to
    adopt them as regulations.
        Also, in the recent fair use litigation, courts have found
    that the reposting of IBR standards has not caused harm to the
    market for those standards.
        Fourth, pro codes would not achieve the certainty its
    supporters seek. Even if pro codes were enacted, the SDOs would
    not necessarily be able to prevent the reposting of IBR
    standards with any certainty. A court might still find that the
    reposting of an IBR standard was a fair use. In the recent
    litigation concerning the reposting of standards, the courts
    have permitted the reposting under a fair use theory.
        Direct incorporation is a better way to address this issue.
    IBR is an analog-era solution that was necessary when
    voluminous standards were available only in printed
    publications that were expensive to produce. Now, that
    standards can be made available digitally, it would be more
    efficient and effective to require government agencies to
    incorporate standards directly into codes and to make the
    complete codes available online from the official agency
    website.
        Before direct incorporation, the agency might have to
    request a royalty-free license from the SDO. We expect that
    most SDOs would eagerly grant such a license because their
    objective in creating the standard in the first place was for
    it to be adopted by an agency as a regulation.
        I'm happy to answer any questions the Subcommittee may
    have.
        [The prepared statement of Mr. Band follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Issa. Thank you. We'll start off with Mr. Fitzgerald.
        Mr. Fitzgerald. Chair, thank you very much.
        Mr. Pauley, let me start with you. These numbers are what
    you laid out, but fire incidents since 1980 have declined by 54
    percent, and home fire deaths have declined by 44 percent over
    the same period. Because of the work of the standards
    development organ--the SDO, like NFPA--in other words, when
    Americans go to bed tonight, they're safer because of the
    standards your organization has developed. Do you think that's
    correct?
        Mr. Pauley. I would agree with that statement, sir.
        Mr. Fitzgerald. Your standards development process is
    currently self-funded, right?
        Mr. Pauley. That's correct.
        Mr. Fitzgerald. On average, how many do you think--how much
    do you think it costs--that's a tough one to answer maybe--of
    what it costs for an NFPA to develop a new standard or update a
    current standard that might be in place?
        Mr. Pauley. I appreciate that question. It is a tough one
    to answer. The vast majority of our expenses that we incur do
    go to the development of standards, because it's not just--I
    realize people think of it as just words on paper, but I have
    engineering staff that have to staff technical committees. I
    have IT staff that has to put the systems in place to be able
    to update those standards.
        We have to operate as an entire function to be able to
    carry out this work. The vast majority of our expenses do go--
    we don't track it by individual standards. We look at it as an
    entire process.
        Mr. Fitzgerald. The copyright attached to the code is the
    primary revenue that's generated to fund that process.
        Mr. Pauley. Yes, sir, Representative Fitzgerald. It makes
    up about 70 percent of our revenue comes from the sales and
    licensing of our codes and standards.
        Mr. Fitzgerald. You think you could continue to have the
    self-funded model absent the Pro Codes Act?
        Mr. Pauley. No, sir. I believe that's exactly what's at
    risk today, is that the model works not only because it's self-
    funded, but because it also allows us to be independent, and
    that's such a critical part in the development of codes and
    standards. We put people around the table so that no one entity
    or interest can control the outcome of that standard. Us being
    independent is what's important to do that. If we have to do
    that by taking money from industry, it won't be independent. If
    we have to take money from government, it won't be independent.
        This model's worked for a century, and it has worked well
    and it has served the public well.
        Mr. Fitzgerald. Very good. Thank you.
        Mr. Venneri, I don't want to put words in your mouth, but
    your association's concerns with the proposed Pro Codes Act, a
    lot of it seems to be centered around the mandated posting of
    the codes online. Is that an accurate statement?
        Mr. Delli Venneri. That is correct.
        Mr. Fitzgerald. OK. That's because some of the codes are
    for national security, critical industries, and specific types
    of technologies. Is that correct?
        Mr. Delli Venneri. It's not necessarily just the
    technologies, Mr. Fitzgerald. The question and the problem with
    the Pro Codes Act is that the person or the entity that decides
    whether or not my copyrighted material must be posted online
    for free is not the copyright holder. It's not ASME. It's the,
    roughly, 50,000-90,000 jurisdictions in the United States that
    decide what they want to incorporate and what they don't want.
    Because the premise pooled commission can take my 33-volume
    standard and say we're incorporating by reference, it
    automatically puts a mandate on me to publish that out on the
    web, and I don't have control over that.
        Incorporation by reference is not a copyright violation. I
    have no way to stop anybody from incorporating by reference. If
    you've got enough jurisdictions out there incorporating this,
    incorporating that, you're going to essentially wind-up with
    having the whole out there.
        The other piece of our standards that are different than
    Mr. Pauley's is our standards are for manufacturers. By the
    time our standards--by the time a product gets into the hands
    of a consumer, all the compliance is done by the manufacturer,
    not by the consumer.
        They're different, and that's part of the reason why I have
    an issue with the bill as drafted, because it's one size fits
    all no matter what kind of standard you're dealing with.
        Mr. Fitzgerald. One more followup, I guess, would have been
    some discussion about national security implications. Can you
    just reference that quickly? What could they be?
        Mr. Delli Venneri. Absolutely. Manufacturers come to us
    because we're a 501(c)(3), and they donate their time. The
    concept that I'm trying to get around is it costs a lot of
    money to do these very highly technical codes. If you take away
    my revenue source, I leave the field. Then, who is going to
    come into that field? It's going to be geopolitical rivals.
        Mr. Fitzgerald. Thank you, Chair. I yield back.
        Mr. Issa. I thank the gentleman. We now go to the gentleman
    from Maryland for five minutes.
        Mr. Johnson. Thank you--
        Mr. Issa. Oh, I'm sorry. The gentleman from Georgia.
        Mr. Johnson. I'm sorry. I didn't catch it. Mr. Delli
    Venneri, I'm having trouble understanding how the legislation
    could be improved to accommodate your criticisms, which are
    that it draws no meaningful distinctions between highly
    technical engineering standards as opposed to the text of laws,
    or between standards incorporated in their entirety as opposed
    to standards incorporated only in part, or to standards used
    extensively as opposed to standards used rarely.
        Why do these differences matter in terms of adoption of the
    Pro Codes Act as written, and how could it be written
    differently to accommodate your concerns?
        Mr. Delli Venneri. he Pro Codes Act, again, is blind as to
    the type of standard that is being incorporated by reference,
    and the incorporation is not done with our permission, right.
    It's just done by governments anywhere.
        Mr. Johnson. That's true with the other organizations as
    well.
        Mr. Delli Venneri. With different models, it may work,
    right. My issue is it doesn't work for my organization.
        Mr. Johnson. Why?
        Mr. Delli Venneri. Well, let me explain to you a little bit
    about the codes business. Not every one of our codes makes
    money. As a matter of fact, the vast majority, overwhelming
    majority don't. There's a handful that do. If I have
    governments, 90,000 governments out there deciding what needs
    to go out in the public domain and what doesn't, I could lose
    my entire royalties.
        Mr. Johnson. OK. Thank you. A standards developing
    organization's primary function is to create uniformity across
    producers, consumers, government agencies, and other relevant
    parties concerning a product's specifications and protocols.
    These groups perform this coordination to ensure that products
    may be used and can perform according to their intended
    purposes.
        Mr. Pauley, I'm interested in how a standard is developed
    from inception through adoption and who participates in that
    process and how are the participants in the process selected.
        Mr. Pauley. Thank you, Ranking Member Johnson, for that
    question.
        Let me start a little--I've been involved in the standards
    process for a really long time, so I'll try to compress it and
    be as brief as I can in its explanation.
        Standards generally have to come from an idea. In NFPA's
    case, it is, unfortunately, often been on the backs of
    tragedies that standards have been developed because of some
    event or some occurrence, and we recognize the need for a
    standard to be able to put in place.
        One of the examples I'd like to use for you in this is a
    standard we are working on right now called NFPA 800, the
    battery safety code. I don't think I have to tell this
    Committee about issues that have been seen with batteries,
    lithium-ion batteries, and batteries used throughout our entire
    society.
        We published that we were going to produce this code, and
    we received public comments back from people that would say,
    this is a good idea, it's not a good idea, I would like to
    serve on the committee. We take all that input in. We draft a
    scope for that particular standard, and then we begin to
    assemble the committee.
        What's very important in what we do in this process, as
    governed by the rules of our own rules and the rules of the
    American National Standards Institute that accredits standards
    developers, open, transparent, and consensus-based. What we
    look for are people that have an interest in the topic and that
    can bring expertise to the table, but we create a balanced
    committee. That battery committee can consist of manufacturers,
    of insurers, of designers, and of installer-maintainers of
    those systems. The list can go--we have about nine different
    classifications.
        What's a very important part of this process is, in our
    case, no more than one-third of an interest can make up the
    committee, but two-thirds of that committee has to agree before
    you can actually add something or agree to the standard. We've
    created this balanced, transparent process. From there, the
    draft of that standard can be put out for public review, and it
    takes public inputs.
        This document that I have in front of me, the National
    Electrical Code, every three years gets about 5,000 public
    inputs for changes to this document. The committee operates on
    every one of those. They have to address every one of those
    inputs that comes in.
        Mr. Johnson. Is that what drives revisions and updates?
        Mr. Pauley. That is exactly what drives revisions and
    updates. We will update this document every three years,
    regardless of what is happening from the standpoint of whether
    government is using it or not or whether it's incorporated by
    reference.
        What's important also, not only do they address all those
    inputs, that result goes back out transparently for public
    review. In this document, about another 5,000 public comments
    come in. Those get addressed by the committee, voted on,
    balloted. That result gets produced, and ultimately the
    standard finishes our process by going through the final steps.
        What's also very important in this process is we have to
    operate an appeals process. There has to be an appeals
    mechanism where somebody can say, we believe I was treated
    unfairly. We have an entire appeals body that does that.
        Mr. Johnson. All right.
        Mr. Pauley. I'll finish by answering your last question.
    The group that appoints the members of that committee is not
    NFPA staff. We have a group called our Standards Council that
    is made up of 13 voluntary members. They are from various walks
    of industry. That council is responsible for the appointments
    on the committee to ensure that we have open and balance inside
    of that process.
        Mr. Johnson. Thank you. I yield back.
        Mr. Issa. Thank you. The gentleman yields back. We now go
    to the gentlelady from Florida, Ms. Lee.
        Ms. Lee. Thank you, Mr. Chair.
        Codes and standards are around us everywhere, from the
    buildings we live in to the systems that keep us safe, and for
    decades, the United States has relied on successful public-
    private partnership where expert standards are developed by
    private organizations and then incorporated into law.
        As we're hearing today, that system today is under strain.
    Courts are sending mixed signals about whether those standards
    retain copyright protection once incorporated by reference,
    creating uncertainty that risks undermining both public access
    and the incentives that are needed to develop high-quality
    standards.
        At the same time, we cannot lose sight of the core
    principle that Americans should be able to access and
    understand the laws that govern them.
        Today, I know we work to try to strike the right balance
    between protecting innovation and public safety while ensuring
    meaningful access. I appreciate very much the Chair for
    convening this hearing and all of you for helping us with this
    important and complex discussion.
        Mr. Kupferschmid, I'd like to start with you. One of the
    things you mentioned earlier was that recent court decisions
    have created uncertainty around whether standards incorporated
    by reference remain protected and that courts have developed
    some inconsistent rulings. Could you tell us a bit about what
    some courts are getting wrong in your view?
        Mr. Kupferschmid. Yes. Thank you very much. I work in all
    different areas of copyright. I can tell you this particular
    area is more chaotic than any other in terms of when the courts
    take on issues relating to copyrightability or fair use. There
    are direct and conflicting decisions on copyrightability, on
    fair use, throughout the country in different circuits.
        On copyrightability, we have differences between the Second
    Circuit and the Ninth Circuit agree. We have a bunch of courts
    that is copyrightable. We have courts in the Third Circuit, I
    think the Eastern District of Missouri, D.C. Circuit, which are
    either ambiguous or silent on the copyrightability issue.
        Then we have the Veeck case of the Fifth Circuit, which was
    decided about 25 years ago, in about a quarter century. No
    other court outside of the Fifth Circuit has decided to adopt
    that rationale and say, look, these codes and standards lose
    their copyright-
    ability.
        On fair use, we have a similar challenge, right. The
    Supreme Court came out with this big, very, very important case
    in May 2023, I think it was, the Warhol Foundation case, and in
    that case it set standards for how the first factor of fair use
    should be interpreted.
        Since that case came out, we now have two separate cases,
    both saying completely opposite things on fair use. That's why
    ultimately we're here. We're here because we need some clarity.
    We understand there needs to be a compromise; there needs to be
    balance. We realize that not everyone is going to be happy. We
    have extreme views sitting here. On one end of the table, we
    have someone who doesn't want any copyright protection at all.
    The other one is kind of ignoring all these cases that are
    threatening us.
        We need to find a compromise. We need to find a balance.
    The pro codes is a good step in the right direction.
        Ms. Lee. A related question. One of the things too that you
    mentioned was that this was an area where Congress needed to
    step in and needed to do so, I believe, more imminently. Would
    you explain why you believe congressional action is important
    rather than allowing that case law to continue to develop?
        Mr. Kupferschmid. Well, it's not just me that thinks that
    way. We've had at least three, I should say, courts in
    different jurisdictions say, Congress, please help us out here,
    right. They have said in the actual decision, in absence of
    congressional direction here, we're going to do our best to try
    to figure this out, and they are not doing a good job. There
    are a lot of uneven, inconsistent decisions. What's going to
    happen is those decisions aren't going to hurt just SDOs. They
    are going to hurt and be applied in other copyright context and
    hurt.
        Really this is a type of issue that Congress has in the
    past jumped in and legislated on, and it would be appropriate--
    very, very appropriate for Congress to jump in and legislate
    here as well.
        Ms. Lee. Thank you. I'll yield the balance of my time to
    the Chair.
        Mr. Issa. Thank you. I'll followup on that with Mr. Delli
    Venneri. If we made changes--and you know we've been
    negotiating with your organization to try to find common
    ground, and as we can tell by your opening, we didn't find it.
    If we said, for example, that only if you give consent to be
    included by reference, then this would act, would that be
    acceptable to you? If not, why not?
        In other words, you often say that you don't try to get
    included by reference, but when you do, you don't sue them and
    say, how dare you include my copyright, and please don't. The
    question is, on those occasions in which you are to be included
    by reference, would you agree that if, in fact, you consent to
    it, you sign onto this bill, if you openly reject it and try
    not to, that you would, in that case of notice, you would not
    give up your right and have to post it?
        Mr. Delli Venneri. I would like to first just add one
    thing, that our process is almost identical jot for jot with
    Mr. Pauley's process. I don't want to bore the Committee with
    that same testimony again. OK.
        Mr. Issa. We do appreciate the work that all your
    organizations do. That is not the conundrum we face here today.
        Mr. Delli Venneri. Understood. I think we're only going
    halfway. Yes, a fundamental problem is the mandatory posting.
    Absolutely. That would go a long way to getting where we need
    to go.
        I'm actually interested in some of the statements that were
    made today about inconsistent court cases and inconsistent
    results. There are always inconsistent results in court cases,
    but the courts have consistently used fair use to decide the
    issue. Now, fair use is a case-by-case decision, right? It's
    based on the standard, the use, the infringement, all the rest.
    It's not surprising that you're going to have different results
    applying that same rule.
        I would say, I'm not ignoring the law. One of the problems
    that I've had since day one with the Pro Codes Act is it's not
    addressing the fundamental doctrine that the courts are using
    to decide this issue, and that's fair use.
        Understand that fair use--for fair use is even to be
    invoked as a defense--which is what it is--you have to have a
    copyright violation, which means you had a valid copyright to
    begin with. The Pro Codes Act doesn't go anywhere near
    protecting copyright. It just restates the predicate that you
    need for fair use to be actionable, or to be invoked by a
    defendant.
        Mr. Issa. To be continued. We now go to the gentlelady from
    California, Ms. Lofgren.
        Ms. Lofgren. Thank you, Mr. Chair. For many years, I have
    been involved in this issue to protect access to the law. I
    filed amicus briefs in cases where SDOs sued
    Public.Resource.Org for posting legal standards online.
        As you've mentioned, sir, the courts have consistently
    defeated the idea that you can copyright protection of the law,
    that there is fair use. In fact, in 2023, in ASTM v. PRO, the
    circuit twice held that the noncommercial dissemination of such
    standais are incorporated--as incorporated by referencing the
    law are fair use. The circuit in 2026 found the same thing.
        The Supreme Court in Georgia v. PRO found that this is fair
    use. Justice Roberts said no one can own the law. Justice
    Thomas said, ``statutes and regulations cannot be
    copyrighted.'' I think the law is clear.
        I just think, Mr. Band, in the amicus brief in ASTM v.
    Public.
    Resource, the NAACP noted that--and this is a quote, ``Without
    the information contained within the technical standards at
    issue, Black and low-income communities are fighting blind
    against landlords and other powerful, well-resourced
    adversaries. For these communities, access to the standards is
    access to justice.''
        Does this bill create a two-tiered system where some people
    get limited access to the law and those who pay can get better
    access?
        Mr. Band. Yes. Thank you for the question, Representative
    Lofgren. Yes, it absolutely would create a two-tiered system,
    or at least a two-tiered system because the reading rooms that
    the SDOs have established and that this legislation would, in
    essence, bless typically involve access that just doesn't make
    sense in 2026.
        Ms. Lofgren. Right.
        Mr. Band. The fact that these standards are--or that these
    standards--you can't download them. You can't cut and paste
    them. It makes it much, much more difficult to use. Just having
    a PDF online really is not access.
        Ms. Lofgren. Really, tenants or homeowners or workers would
    not have the same access. Let me just move on to another issue.
        Mr. Pauley, you mentioned that these reference standards
    don't really have legal effect, but I would like unanimous
    consent to put into the record the fact sheet from NFPA which
    says this: ``The code references various organization standards
    within their requirements, and once the code is implemented by
    the authority having jurisdiction, those reference standards
    are a legally enforceable part of the code.''
        I would ask unanimous consent to put that into the record.
        Mr. Issa. Without objection.
        Ms. Lofgren. I would like to ask unanimous consent to put
    the amicus brief into the record.
        I just would like to note there have been comments made
    about whether or not these standard-setting organizations can
    survive, but I would just like to note, since all the cases
    have been lost in the courts, the financials are still going
    forward. I mean, ICC financials--their revenue in 2024, after
    they lost the court decisions, was $100 million. NFPA, after
    they lost, the courts precluded what they are asking to change
    now, their revenue was $115.1 million, and I would ask
    unanimous consent to put these financials into the record, Mr.
    Chair.
        Mr. Issa. Without objection, all 990s of all nonprofits
    will be placed in the record.
        Ms. Lofgren. That will be fine. I just think it's not that
    we don't care about what the SDOs do. Obviously, we do. What we
    care most about is upholding what the court found and what the
    public deserves, which is free and full complete access to the
    law that they are bound by. The idea that we should charge
    people or impede access to what people are bound to live by is
    just inconsistent with due process and the American system of
    justice.
        I see my time has expired, Mr. Chair, so I yield back.
        Mr. Issa. The gentlelady yields back. We now go to the
    gentleman, Mr. Gooden, for five minutes.
        Mr. Gooden. Mr. Pauley, could you touch on the last comment
    about the accessibility to the codes, PDF versus searchable,
    and how they wouldn't necessarily be accessible to all? I just
    want to understand that because I hear that often.
        Mr. Pauley. Thank you, Representative Gooden, for the
    question.
        For NFPA, we have placed our codes and standards online for
    free access for coming up on 20 years now. By the way, just to
    be clear, we don't do that with just the standards that have
    been incorporated by reference, we do that with our entire
    library of standards, whether they have been incorporated by
    reference or not. We do believe that the transparency access to
    this is important, but it's also a balance.
        In the case of NFPA's free access model, you can go to our
    website. You can pick any of those 350 codes and standards,
    click on the free access button. We ask for minimal
    information, typically an email address and so forth to get in,
    and you can read that entire standard, everything, from cover
    to cover. It has a searchable table of contents. There's an
    index in the back for it to be used. It is not downloadable or
    printable or, in this case, either searchable at least by full
    text other than those things I mentioned.
        That's the balance that we're talking about in this case.
    The reason why that model has worked is because it allows
    people that want to have access to read the standard to have
    access.
        The professionals that utilize the document, they subscribe
    or they buy a copy of the standard that it is that we're
    talking about. If I put, as was suggested, everything online
    completely for free, downloadable, or if a government did that
    on their website, why would anybody pay me for a copy of the
    standard? Suddenly, the funding model that has funded the
    entire standards system is now gone.
        We believe that transparency and access to the standards is
    important, and we've been doing it with a two-decade track
    record as was brought up, we've been able to do that, and yes,
    we are still in existence as an SDO in that process.
        Mr. Gooden. If we fail to pass the Pro Codes Act, how would
    you argue that this impacts the health and safety of Americans?
        Mr. Pauley. What's most important about the Pro Codes Act--
    I understand a lot was talked about the court cases. I am not a
    lawyer that's up here in front of you. What is at risk is the
    copyright protection that we have in place. If that copyright
    protection goes away, then the safety and health of Americans
    are affected because we can no longer produce the standards.
        I agree with Mr. Delli Venneri. Copyright is important to
    us. By the way, I share the same thing that he does. A few of
    our standards actually generate the revenue. The vast majority
    of them do not.
        What's important about the Pro Codes Act, from NFPA's
    perspective, are two basic principles: It reinforces the fact
    that you don't lose copyright just because your standard is
    incorporated by reference, and it promotes transparency to the
    public of those particular elements.
        Again, without it, I'll go back to my dam analogy. The
    courts are really putting cracks in the dam. The problem with
    copyright is, if the dam breaks, we lose copyright. You can't
    come back from that. It's gone. That, I believe, is the reason
    why it's imperative that Congress act.
        Mr. Gooden. Thank you. I yield back to you, Mr. Chair.
        Mr. Issa. Thank you. Mr. Pauley, I'm going to followup on
    that. Earlier, we quickly glanced at one of your books, and I
    asked you to keep track of that, and would you just briefly
    read it? It's on iron-air storage related to electric EV
    stations.
        Mr. Pauley. Yes, Mr. Chair. This is out of NFPA 855, which
    is our Standard for the Installation of Stationary Energy
    Storage Systems. The particular section: Hazard conditions for
    iron-air batteries under normal operating conditions are as
    follows:

            Fire hazards. There is the potential for concentrations of
            hydrogen from iron-air batteries if the area where the
            batteries are located is not properly ventilated.

        Mr. Issa. Without objection, I'm going to consider that
    whole paragraph inserted in the record.
        Now, is any part of what you started reading a code, a law?
        Mr. Pauley. Mr. Chair, it is not the law. It is a set of
    elements that the committee has put forward.
        Mr. Issa. The guidance, the how-to that I'll find in every
    one of these and thousands of other books--including Mr. Delli
    Venneri's company's organizations--we're not talking just about
    statute. If, in fact, we only were--these court cases, if they
    were only dealing with a very narrow gobbledygook that we see
    in U.S. 35 blah, blah, blah, it wouldn't tell you how to do it.
    It wouldn't tell you some of the concerns. It wouldn't educate
    you in the way that your books and standards books do for all
    of you, from what I understand. Is that correct?
        Mr. Pauley. I would agree with that.
        Mr. Issa. OK. I'm just going to yield back the time I was
    so nicely granted by making the point that Mr. Delli Venneri
    made--which I agree with--which is one of the problems here is
    that what's being referenced as a law is only a small part of
    the documents that all your organizations are producing.
        With that, I would go to the gentlelady, Ms. Ross, for her
    five minutes.
        Ms. Ross. Thank you, Mr. Chair, I want to thank the Ranking
    Member for letting me go before he does.
        I'm thrilled that we're having this conversation and that
    we have the whole range of opinions about how to solve this
    problem, but the fact of the matter is, it is a problem. It may
    not be a problem in certain areas where--certain jurisdictions
    where both the people who make the codes and the people who
    want to create access have come to some agreement. I thought it
    was very interesting that Mr. Band actually talked about the
    concept of a license. We talked about that a lot.
        What I'm seeing here is that there are two things that are
    going on. (1) A fundamental tension that we've always had in
    our law, and (2) is a looming problem. This fundamental tension
    that I'm seeing--and I served on the Uniform Codes Committee in
    the North Carolina General Assembly for many years. People
    thought it was the most boring committee. I actually thought it
    was very interesting to see all the work that goes into
    producing these independent codes.
        Well, of course, the North Carolina General Assembly wanted
    to adopt some of these codes and not do the work itself, but a
    good thing about doing that is the lobbyists don't get
    involved. The industry doesn't get involved. You really get a
    better, more scientific, more truthful way of doing it.
        When a government takes property, even for public good--
    which is a taking under the Fifth Amendment--they compensate
    the landowner. If the General Assembly in North Carolina wants
    to build a highway and they want to take somebody's front yard,
    they pay fair market value or fair value for it because there's
    a public good. Because they recognize that property right.
    Copyright is a property right. It's a temporal copyright. It
    has an expiration date. It is a property right.
        For that reason, a really easy way to resolve this--but
    nobody seems to want to do it--is to actually pay people like
    you pay them when you take their front yard for a highway.
    Then, their license fees, they don't even have to be big
    license fees. Just enough to support this. Nobody wants to pay.
    They want to hide behind fair use.
        I love fair use. I was a professor. I use fair use all the
    time. When I taught my students, I did copies of things. I
    taught the law. We went out and did it. However, to really get
    good access to the law, you actually had to pay, by the way,
    Lexis or somebody else.
        When you are going to say that fair use covers something
    that can be further monetized, like what we see with UpCodes,
    then that is not fair use anymore; that is taking the industry
    of somebody who has copyright protection, using everything that
    the wonderful libraries are talking about for your own benefit,
    and monetizing it.
        That is exactly what is going on right now with AI. What is
    going on with AI, is they are saying, ``Oh, there's a public
    good for us to use newspapers and artists' work, and we
    shouldn't have to pay for that because we're doing so much and
    AI is so wonderful.'' Well, AI is wonderful when it produces a
    public good, but when you're get to make money off it, no can
    do. That's why Anthropic lost its lawsuit.
        What we're doing here is trying to have that balance,
    trying to provide people in libraries and people who need
    information with information, but also, compensate people for
    their industry.
        I want to turn to Mr. Kupferschmid because he does
    represent people in a broader way and ask him whether I'm
    seeing this in a reasonable way, and whether expanding the fair
    use doctrine is a further threat to copyright.
        Mr. Kupferschmid. Yes. As you were speaking, I was just
    thinking--sort of nodding in agreement with everything you said
    because your approach to the issue and your statements are spot
    on in terms of this is about balancing. If you don't have the
    correct balance, you may see the SDOs disappear, or a real
    threat to their industry for certain. I think that is something
    that is very significant.
        The AI issues you mentioned, obviously, we're in agreement
    there. We hope the courts agree with what you just said as well
    and come out on that.
        We're big supporters of fair use. There's nothing that's
    sort of categorically fair use one way or the other. There
    certainly will be instances where using codes and standards
    will be fair use and other instances where it should not--
    certainly should not be fair use.
        Ms. Ross. OK. Thank you, and I yield back.
        Mr. Issa. I thank the gentlelady. We now recognize the
    gentleman from California, Mr. Kiley.
        Mr. Kiley. Thank you, Mr. Chair. Thank you for convening
    this hearing and for this legislation.
        There are a few questions that we need to consider at a
    higher level here.
        First, do we want to do something or nothing as a Congress
    in the face of the courts handling this matter in a way that
    has created uncertainty? The clear answer is we want to do
    something to produce some level of certainty.
        Second, whether we want to empower or weaken the process of
    standard setting, which has served to tame the complexity of
    modern life and allow coordination to triumph over chaos. The
    clear answer is that we want to strengthen that process.
        Third, do we want to strengthen or weaken the voluntary
    associations that have allowed the process of standard setting
    to play out with a broad range of expertise that would be very
    hard to replicate through some government-engineered process?
    Again, the answer is that we want to empower those
    organizations.
        With that in view, that we have a pretty clear set of goals
    here, and the question just is how do we strike the balance?
    This legislation is aiming to do that. Perhaps it could use a
    little more refinement. That's why we're having this hearing.
        Just to followup on the Chair's questions a little bit, Mr.
    Pauley--so, when you incorporate by reference, you're
    incorporating the standard, but the work product of the
    standard-setting organization encompasses commentary, drawings,
    illustrations, prefaces, everything else. There is that
    distinction, right?
        Mr. Pauley. I'm sorry. You mean with respect to or as
    compared to what?
        Mr. Kiley. If a standard is incorporated by reference, the
    only thing that's sort of part of the public body of law, then,
    is the standard itself. It's not all the supplementary material
    that your organization produces.
        Mr. Pauley. Well, I would agree with you. This is part of
    the issue, I believe, and the lawyers on the panel can help me.
    The problem with some of the courts are they have taken a
    long--even some of the supplementary information that's in the
    standard and included that to say it's the entire standard, and
    that is indeed one of the challenges.
        One of the points that was made along the path that's
    saying--there is a lot of what we refer to in the standards
    world as annex material, which is important material to have
    but not necessary to apply the rules of this standard itself.
    The courts have taken this thing in great--or in whole, again,
    is why I believe it really begs for a policy question for
    Congress to really deal with.
        Mr. Kiley. Yes. Do you think--and I'll take your opinion on
    this as well, Mr. Kupferschmid--that this bill, as we've
    written it, makes that distinction in the right way? Let's
    forget standards for a second. You can look at the U.S. Code,
    the Code of Federal--the Book of Federal Regulations. There's a
    lot there that wouldn't make a lot of sense if you just kind of
    read it. The language of the law itself, it's cross-referencing
    this section and that section.
        There's all kinds of materials that exist that help people
    interpret and give them advice on that this isn't necessarily
    part of the law itself. Are we creating the right distinction
    here?
        Mr. Pauley. Well, I do believe that Pro Codes does strike
    the right balance between these things. If we can ensure that
    the copyright is protected overall, the access part of this of
    whatever it is that you want to try to call the standard is an
    important piece of the transparency that we talked about.
        What would result, if I understood your question correctly,
    would be trying to separate those two pieces out into separate
    elements. I don't want to speak for my standards committees,
    but what the standards committees would say on top of that is,
    we've tried to assemble something that's useful for the people
    that professionally use the standard, and our standards
    committees are not thinking about this in terms of public
    access or anything else. That's something we as the
    organization have to be able to do.
        Does Pro Codes strike the right balance between those? I
    suspect there's all flavors of that. What's not clear to me is
    how you would bifurcate those pieces with all the variations
    that are out there.
        Mr. Kiley. Mr. Kupferschmid? Thank you.
        Mr. Kupferschmid. I agree with Mr. Pauley. When you're
    talking about balancing these interests, there's definitely
    different ways to do it. We are on record, and in the
    testimony, I mentioned the fact that maybe it's better--instead
    of attaching to copyright or kind of tying public accessibility
    to copyright protection to copyright enforcement instead,
    right? That might address some of the copyright infringement
    cases that are coming out recently. Perhaps that's a way to do
    it. Maybe there's additional tweaks or something to the bill
    that can be made.
        Ultimately, Congress is going to have to realize not
    everyone is going to be happy here. This is about compromise
    and trying to address individual interests and balance those
    interests. The Pro Codes Act coming out of the gate is a very,
    very good approach. Could it be better? Sure. I'm sure that it
    could be tweaked this way and that way, and it should be, but
    we are very supportive of the framework established by the Pro
    Codes Act.
        Mr. Kiley. Thanks very much. I yield back.
        Mr. Issa. I thank the gentleman. We now go to the
    distinguished Ranking Member of the Full Committee, the
    gentleman from Maryland.
        Mr. Raskin. Mr. Chair, thank you very much, and please bear
    with me because I'm really just trying to figure this thing
    out. This is complicated, OK?
        My first question--and I'm not even sure who it's directed
    to--is why do the government bodies not actually embody the
    standards explicitly in the codes rather than incorporate them
    by reference? I don't know.
        Yes, Mr. Band.
        Mr. Band. Again, that is a historical legacy from the print
    days. Remember when we used to have to go to the physical
    libraries to do all our research and nothing was online?
        Mr. Raskin. OK.
        Mr. Band. It was just voluminous to print.
        Mr. Raskin. Has anybody ever challenged legislative
    incorporation by reference? We use it when we file a complaint,
    but has anybody ever said that's not law? Along those lines, if
    somebody updates their code, does that need to go back to the
    legislative body or is that just automatically incorporated by
    reference?
        Mr. Pauley.
        Mr. Pauley. If I could, generally, when an incorporation by
    reference is done, it is usually done by standard and by the
    edition of the standard that is particularly stated. In the
    case--I'm holding up the National Electrical Code. This is the
    2026 edition. They would normally say, ``we're going to
    incorporate by reference the 2026 edition of the National
    Electrical Code.''
        My understanding is, in the vast majority of cases, it
    would go back to the legislature for whatever the next update
    would be at some point in time.
        Mr. Raskin. Gotcha. OK.
        Mr. Kupferschmid. Can I answer the question from a
    copyright law standpoint?
        Mr. Raskin. Yes. I'm going to come back to you, but let me
    just pursue Mr. Pauley for one second.
        When you described how your system works--and you said it's
    pretty much the same with--you've got the two-thirds
    requirement. You try to bring in all the different players and
    so on. That sounds kind of like a public process where you've
    got your own rules and regulations, and then this legislation
    makes it even more public. It essentially says that we're going
    to allow people to incorporate by reference. We're going to
    make it the law. We're going to grant you the continuance of
    your copyright protection as long as you put it up online. Is
    that basically right?
        Mr. Pauley. Yes. I think you've basically described that as
    correct.
        Mr. Raskin. OK.
        Mr. Pauley. It is certainly more transparent access--
        Mr. Raskin. All right. Has this ever been challenged as a
    delegation of public power to a private entity? Has the
    constitutionality of this been upheld?
        Mr. Delli Venneri. Well, certainly, it depends on the code,
    and that's why I've been raising these distinctions, right?
        Mr. Raskin. Yes.
        Mr. Delli Venneri. For example, if you want to go to the
    New Jersey electrical code, you can't find it. There's no
    posting on the New Jersey--
        Mr. Raskin. It just incorporates by reference. Is this
    right? OK.
        Mr. Delli Venneri. It just says go to their website,
    essentially, OK? It really depends, that is the law jot for
    jot, word for word--electrical code.
        Mr. Raskin. Yes. Right. All right. Are your concerns
    assuaged by either of these two things? (1) You've got the
    right to opt out of this. I can see you don't like being
    compelled to put your stuff up online just because a third
    party--a legislature or city council or something--incorporates
    by reference your work. You have no control over that. (2)
    Suddenly, you are compelled to put your stuff online in order
    to protect your copyright.
        Are you OK with this: (1) if you're allowed to opt out or,
    (2) if there is simply a statement that your copyrights are
    unaffected by this? That is that they are neither impaired or
    increased. It is just neutral. It's what the status-quo ante
    was.
        Mr. Delli Venneri. Well, I would say that your question
    assumes that this isn't the right solution for everyone, and
    this should be a solution for everyone.
        Mr. Raskin. That's what I'm asking. How do you make it a
    solution for everyone?
        Mr. Delli Venneri. Well, you write a different law, right?
    One that doesn't compel--
        Mr. Raskin. What is your solution?
        Mr. Delli Venneri. My solution is that we're going to have
    to take a look at fair use. We're going to have to look at
    those factors. We're going to have to give some guidance to the
    court. I also want to, if I may, talk to what the--
        Mr. Raskin. You mean change all the fair use doctrine?
        Mr. Delli Venneri. Absolutely not. Just do it in such a way
    to help the court get to perhaps different decisions. Also,
    there's another couple of issues here that I--
        Mr. Raskin. Well, do you disagree with Mr. Band that it's
    obviously fair use when people access what's been defined as a
    law in a particular jurisdiction? That's got to be fair use,
    right? That's what the courts are saying, as I understand it.
        Mr. Delli Venneri. Well, that's really sort of an
    interesting question, OK?
        First, the way that people use standards is to read them,
    right? To Ms. Ross' point, AI--forcing people to put their
    standards on the web, under the Anthropic decision, gives the
    Anthropic--the agentic agent the ability to read it and exposes
    us to all kinds of AI dangers, right? In certain respects, this
    bill goes in the wrong direction with respect to AI, No. 1, OK?
        Second, think about the precept here. Everybody wants the
    public to have access to laws that govern them, right? The act
    that makes people compelled to follow laws is the act of the
    sovereign. What this bill basically says is that the sovereign
    has a duty to give fair notice to its citizens, and it's really
    saying, Oh, and by the way, we're not going to pay for that.
    We're going to compel the SDO--the private SDO to finance it
    through perhaps the loss of their standards.
        If you think about it, who has that fair notice
    requirement? It's the State. You are now under this bill
    saying, OK, now you are ASME and you foot that bill, you lose
    the sale of your standards. There's real problems with the way
    that this bill is approaching it.
        Mr. Raskin. Gotcha. Mr. Chair, I want to yield back. I am
    afraid I cutoff Mr. Kupferschmid. Maybe someone else--
        Mr. Issa. If he has a short answer, he is certainly free to
    give it to us.
        Mr. Kupferschmid. Yes. I will just say very quickly that,
    under fair use analysis, a court should look at has the SDO
    made it available to themselves, right? Is it publicly
    accessible already, the standard, and if it is, that should
    work against fair use. The problem is the courts don't really
    understand that or aren't using that.
        Mr. Issa. I thank the gentleman and yield back. Mr. Fry.
        Mr. Fry. Thank you, Mr. Chair, for having this hearing
    today.
        Mr. Pauley, if Congress passes this act, in what ways would
    this be beneficial to the health and safety of our citizens? I
    think we're mired in kind of an exercise in intellectual
    property and kind of nuanced legal issues, but for people
    watching back home, or who may be tuning in, what is the
    practical effect for them?
        Mr. Pauley. Well, look, thank you for the question. The
    practical effect, Representative Fry, is that, over this past
    century, we have shown that private sector standards
    development--those independent standards bodies--have produced
    standards that have been beneficial to the public.
        Whether you want to look at it in the fire numbers that I
    quoted earlier and those reductions, or whether you want to
    look at it from across the spectrum of standards that people
    interact with every day--interoperability, safety standards,
    whatever those may be--the reason why we're sitting here
    today--and I would like to really reiterate this point. Nobody
    that has been involved along this process--the court cases and
    otherwise--has argued I don't have access to the standard as an
    individual that I need to access it.
        We're here because commercial actors want to take the
    intellectual property that has been developed by folks like
    NFPA and others, and they want to use it for their purposes to
    generate revenue. That's why the court cases are in existence
    today. They are not here because we've had some access problems
    along the way with this.
        That's an important point to remember because, if those
    commercial actors can take mine or any other SDO's intellectual
    property and use it the way that they want and make it fully
    available, I'm not going to survive.
        I can certainly speak for NFPA, but, obviously, I'm biased.
    For a lot of other SDOs that deal with it as well, the public
    suffers if the private sector SDO community ends up going away
    in this process, and that is the reason why I think this is
    such a policy issue for Congress.
        Mr. Fry. Pivot a little bit. Talk about the code and
    standard development process that you all have and maybe some
    of the associated costs that are involved in that.
        Mr. Pauley. Yes. All of our costs when we look at--the vast
    majority of what costs we have as NFPA--and you can look at our
    revenue. You can look at our expenses across that entire
    spectrum. The vast majority of those costs are involved with
    that development and that distribution of those standards in
    some particular manner.
        For a lot of people, they think of it in terms of, hey,
    look, doesn't somebody just got to put the words on a piece of
    paper? No, I have to have engineers that have to staff all
    those technical committees. I have IT groups that have the
    systems in place to do this. There is a cost every time we
    develop those standards.
        I would reiterate, out of the 350 or so codes--
        Mr. Fry. You mean it's not free?
        Mr. Pauley. Yes. You are correct. It is not free. These are
    the costs that we incur every day, and they are important. We
    think they are important for society. We are self-funded, so if
    we're not generating revenue, I can't pay those bills.
        Mr. Fry. Let me ask you something. We've been told that if
    we pass this it will create a system in which special interest
    lobbyists would have an effective veto over the health and
    safety standards in the country. Is this accurate?
        Mr. Pauley. No, it's not accurate at all. I go back to the
    process that is so critical under the guise of open,
    transparent, and consensus-based processes. We put those
    processes in place, and we run those committees to keep special
    interests from having a sway over that particular committee.
        Earlier, I mentioned--if you just want it in round
    numbers--in NFPA's case, no more than a third of the committee
    can be made up of an interest, and it takes two-thirds of the
    committee to actually change the document. The beauty of what
    we do is we bring people to the table to have them have debate.
        Mr. Fry. Can you imagine doing that in Congress? My gosh.
    Two-thirds on anything, I don't know if we could do that.
        If the Pro Codes Act was enacted, what steps would you all
    take to make sure that the codes and standards are accessible
    to the public?
        Mr. Pauley. Well, this is probably in one case where NFPA
    probably has a little bit of an advantage only because we've
    been making all our codes and standards--not just those IBR,
    but all our codes and standards--available online for full
    public access for free for the last 20 years.
        For us, we're trying to continue along down the path. I do
    think what our track record shows is that there is a way to do
    this, make public access available, and not suffer the loss of
    revenue, because professionals still purchase the document or
    purchase a subscription. I would just reiterate that's the
    beauty of this process. It's not taxpayer dollars that are
    funding it. It's not big industry dollars that are funding it.
    The cost of the system is spread out across the people that
    actually use the standards in their work every day. It's a
    beautiful public-private partnership in action.
        Mr. Fry. Thank you for that. Mr. Chair, I see my time is
    up. I yield back.
        Mr. Issa. Thank you. That just leaves me now to close this
    thing up, and I'm going to try and bring together as much as I
    can as quickly as I can. I appreciate, Mr. Pauley, that your
    organization is posting online, but as you can tell by Mr.
    Delli Venneri, he posts online but not the same way. His is not
    open and free. There are multiple models at work here.
        Mr. Band, you haven't gotten enough attention, so I'm going
    to ask you. Do you think Napster was fair use?
        Mr. Band. No.
        Mr. Issa. OK. Fair use has its limit, right?
        Mr. Band. Of course.
        Mr. Issa. OK. When somebody monetizes somebody else's
    copyrighted material, that's not fair use, is it?
        Mr. Band. Well, it depends, but in this situation--
        Mr. Issa. Well, in the case of the two that are monetizing
    it now, they both have a form of monetizing in their formula.
    They are not giving it away without either collecting data or
    actually charging a subscription fee. Isn't that correct?
        Mr. Band. I don't know exactly the--
        Mr. Issa. Well, the lawsuits that were--
        Mr. Band. Right. I'm not familiar with the UpCodes business
    model. I don't know the--
        Mr. Issa. They collected 11 million in A round money. They
    have a subscription model--a premium subscription model to
    provide other people's material.
        Mr. Band. Yes, but to some extent, that's something that
    the standards bodies could do themselves, and indeed--
        Mr. Issa. Well, wait a second. Wait a second. They do it
    themselves. They have subscription models. They have programs.
        I'll go back to Napster. In Napster, the recording industry
    didn't have to prove they were going out of business, although
    they sometimes allege that it would kill them. They only had to
    show the violation of the copyright.
        Mr. Band. Right. The difference here is we're talking about
    the law.
        Mr. Issa. Wait a second. We already went through this in
    detail. You are a taxpayer, I assume?
        Mr. Band. Yes.
        Mr. Issa. Have you ever read the Tax Code?
        Mr. Band. God forbid.
        Mr. Issa. Have you any idea what it would be like to try to
    comply with the law by only reading the Tax Code?
        Mr. Band. No.
        Mr. Issa. Doesn't everybody read supplemental copyright
    material to comply with the Tax Code?
        Mr. Band. Yes.
        Mr. Issa. Aren't these, as demonstrated at least briefly,
    in fact, supplemental materials as much as the law that they
    are how-tos and they are teaching and therefore--even if we
    were to narrowly say that--if you say that a--Mr. Massie wasn't
    here today--but, if you say that every three feet there has to
    be 110-volt plug to comply with the law in some jurisdiction,
    even if you say that, the rest of it is not, in fact, the law,
    is it? It's a how-to.
        Mr. Band. As a general matter, that's right. That's why
    when Mr. Pauley holds up that book, I don't think--certainly
    not in my view and the view of my clients--that the whole book
    is not the law and therefore would not be freely available.
    That's also the advantage of--
        Mr. Issa. That is one of the problems with the two that are
    monetizing it in lawsuits, is they are monetizing the entire
    code, including the how-to. They are not clawing through it.
        Mr. Band. Right. If that's the case, then that's a problem.
        Mr. Issa. In the case of Pro Codes, how do we define that
    in a way that provides guidance to the courts? This is really
    for you and Mr. Delli Venneri.
        We are here trying to pass a law that, one, gives a safe
    haven to people who want to get access to information and
    provides clear guidance to the court. I've got two proponents
    and I've got two nonproponents. First, to be honest, one on the
    right of it and one on the left of it. You are not in
    agreement. You simply would like more than we're doing.
        My question to you and the question that this dais needs as
    we go into our markup is: How do we preserve the copyright,
    which everyone is pretty well-agreed exists within these
    manuals, even if small portions are, quote, ``the law.'' How do
    we preserve that and provide guidance to the court, so they
    make consistent decisions, particularly as to this misguided
    interpretation of fair use?
        Which I think I got your point that depends--a lot of these
    cases--when Mr. Pauley's stuff is online already, and then
    somebody monetizes a copy of it, where did the fair use get
    into that? They are simply duplicating and providing for
    revenue what he is already doing. It may be they are making it
    machine searchable, but, of course, that just means they are
    making it easier to take copyrighted material, isn't it?
        Mr. Band. Well, the solution that I offered will really
    take care of your concern. In other words, if let's say
    Congress said that incorporated by--directly incorporated
    instead of incorporated by reference, then whatever was
    directly incorporated, that's the law, and whatever is not
    incorporated directly is not the law.
        Mr. Issa. I agree with you.
        Mr. Band. That would make a very clear distinction, whereas
    now--
        Mr. Issa. For the other three that are actually putting
    stuff out to these municipalities, States, and so on, do you
    see them actually--if you give them, quote, ``the statute
    portion of it,'' do you see them actually doing it, and
    wouldn't it be burdensome economically for them to do so?
        Mr. Band. I'm sorry. I don't understand the question.
        Mr. Issa. Basically, what you are suggesting is that they
    take subsets of every one of these 45,000 different books and
    manuals and put them online and, of course, also print books
    and so on. That's what you are suggesting to comply.
        Mr. Band. Well, the government has put them online, yes.
        Mr. Issa. Right.
        Mr. Delli Venneri, our suggestion that, in fact, a PDF be
    printable, not full machine searchable, AI advance--get
    everything you want and have it tell you how to write an
    application for a permit, because I know that's a concern of
    you that these codes can be turned into AI, producing an entire
    permit, and bypassing everybody with dubious accuracy.
        Where is the middle ground? Because, for the Ranking Member
    who has left and for the Ranking Member of the Subcommittee, we
    need to know--we cannot--inaction is a problem. It's a big
    problem here because of those cases. We're going forward with
    action.
        Mr. Pauley, I will commend that two-thirds are hard to get
    to. We got within one vote of it last Congress.
        Mr. Delli Venneri. Mr. Chair, could I help? I mean you
    asked that question.
        Mr. Issa. Please.
        Mr. Delli Venneri. There are ways to deal with fair use in
    a relatively light manner, right, because folks--that turns
    into a real issue, right?
        First, for example, there is the holding in the cases
    that--when somebody reads a standard to comply with the law or
    somebody reads a standard to comply with the--to use in the
    manufacturing--that suddenly that same standard is transformed,
    right? They say that it's transformative. Everybody reads the
    standard to comply with it, right?
        One thing the Committee might want to think about is when
    you are looking at whether or not it's transformative, right?
    That's one approach, right, to have the courts go in a slightly
    different way.
        There's another line of cases--and I disagree with Mr.
    Kupfer-schmid--in a case in the Fifth Circuit, which was an en
    banc decision called Veeck, but then recently followed in a
    case called CSA v. Knight--I think in 2024--where the court is
    making a more in-depth analysis, right, of what kind of
    standard is it? How is it going to be used? Is this a law of
    general application, or is this a law that governs nuclear
    facilities, right?
        There are fragments in the case law that helps this
    Committee. There is also--if you look at the case law, there
    are certain doctrines that are now being built into fair use
    that has extended beyond its traditional parody news reporting
    type of things. It's turned into quite a different animal in
    the case law.
        Putting some bumpers on those fair use is the right way to
    do it, but it still allows the court to make a decision--a just
    decision based on the specific facts.
        Mr. Issa. I appreciate that.
        As I close, I'll simply say that the bill is going to be
    amended as we bring it to the Committee. It will be an
    amendment in the form of a substitute. Many of you have given
    us input that we expect to already be in that. I would say that
    I would commend you all to engage and reengage if you have
    additional ideas.
        I will say this in closing. If I had my way and I could
    speak to Chief Justice Roberts and he could speak to 677
    District Court judges, I would ask them to find fair use when
    somebody uses the information--wherever gleaned for purposes of
    compliance for themselves and to, in fact, not consider it fair
    use when it is reprinted for a monetization or some other use
    other than the historic, truly educational uses that often
    happen, as Ms. Ross said.
        Now, I don't get to meet with the Chief Justice more than
    once a quarter, and when I do, Mr. Johnson and I are very
    brief. I don't expect to do it except through this upcoming
    law, and I would ask all of you to help us make that bill--
    which is the one we're talking about and we will get across the
    finish line by two-thirds--make it as good as we possibly can
    and meet compromises that do not compromise the concerns that
    we heard here today.
        Then, as sometimes happens, I have a few UCs. I ask
    unanimous consent that the draft bill--or the bill, H.R. 4072,
    to be placed in the record for everyone.
        Then, additionally, I have letters of support from another
    large group of organizations. First, I will not read them all--
    is the IEEE. I would ask all those be placed in the record.
    Without objection, so ordered.
        Last, to be brief, I would also include the subscription
    information on UpCodes and how they do, in fact, find a way to
    monetize that, which is already, in the case of Mr. Pauley,
    freely given away.
        Additionally, as we close, all Members may have five
    legislative days in which to include additional information. I
    would extend that to all our witnesses that they may also do
    it.
        Last, if you receive within five legislative days
    additional questions, would you agree to answer them for the
    record?
        All those responded in the affirmative.
        With that, the Subcommittee stands adjourned.
        [Whereupon, at 2:00 p.m., the Subcommittee was adjourned.]

        All materials submitted for the record by Members of the
    Subcommittee on Courts, Intellectual Property, and the Internet
    can
    be found at: https://docs.house.gov/Committee/Calendar/ByEvent
    .aspx?EventID=119195.

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