[Congressional Record Volume 169, Number 120 (Thursday, July 13, 2023)]
[Senate]
[Pages S2752-S2753]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 660. Mr. COONS (for himself, Mr. Cornyn, Mr. Whitehouse, Mr. 
Tillis, and Ms. Hirono) submitted an amendment intended to be proposed 
by him to the bill S. 2226, to authorize appropriations for fiscal year 
2024 for military activities of the Department of Defense, for military 
construction, and for defense activities of the Department of Energy, 
to prescribe military personnel strengths for such fiscal year, and for 
other purposes; which was ordered to lie on the table; as follows:

       At the appropriate place, insert the following:

     SEC. ___. PROTECTING AND ENHANCING PUBLIC ACCESS TO CODES.

       (a) Findings.--Congress finds the following:
       (1) Congress, the executive branch, and State and local 
     governments have long recognized that the people of the 
     United States benefit greatly from the work of private 
     standards development organizations with expertise in highly 
     specialized areas.
       (2) The organizations described in paragraph (1) create 
     technical standards and voluntary consensus standards through 
     a process requiring openness, balance, consensus, and due 
     process to ensure all interested parties have an opportunity 
     to participate in standards development.
       (3) The standards that result from the process described in 
     paragraph (2) are used by private industry, academia, the 
     Federal Government, and State and local governments that 
     incorporate those standards by reference into laws and 
     regulations.
       (4) The standards described in paragraph (3) further 
     innovation, commerce, and public safety, all without cost to 
     governments or taxpayers because standards development 
     organizations fund the process described in paragraph (2) 
     through the sale and licensing of their standards.
       (5) Congress and the executive branch have repeatedly 
     declared that, wherever possible, governments should rely on 
     voluntary consensus standards and have set forth policies and 
     procedures by which those standards are incorporated by 
     reference into laws and regulations and that balance the 
     interests of access with protection for copyright.
       (6) Circular A-119 of the Office of Management and Budget 
     entitled ``Federal Participation in the Development and Use 
     of Voluntary Consensus Standards and in Conformity Assessment 
     Activities'', issued in revised form on January 27, 2016, 
     recognizes the benefits of voluntary consensus standards and 
     incorporation by reference, stating that ``[i]f a standard is 
     used and published in an agency document, your agency must 
     observe and protect the rights of the copyright holder and 
     meet any other similar obligations.''.
       (7) Federal agencies have relied extensively on the 
     incorporation by reference system to leverage the value of 
     technical standards and voluntary consensus standards for the 
     benefit of the public, resulting in more than 23,000 sections 
     in the Code of Federal Regulations that incorporate by 
     reference technical and voluntary consensus standards.
       (8) State and local governments have also recognized that 
     technical standards and voluntary consensus standards are 
     critical to

[[Page S2753]]

     protecting public health and safety, which has resulted in 
     many such governments--
       (A) incorporating those standards by reference into their 
     laws and regulations; or
       (B) entering into license agreements with standards 
     development organizations to use the standards created by 
     those organizations.
       (9) Standards development organizations rely on copyright 
     protection to generate the revenues necessary to fund the 
     voluntary consensus process and to continue creating and 
     updating these important standards.
       (10) The people of the United States have a strong interest 
     in--
       (A) ensuring that standards development organizations 
     continue to utilize a voluntary consensus process--
       (i) in which all interested parties can participate; and
       (ii) that continues to create and update standards in a 
     timely manner to--

       (I) account for technological advances;
       (II) address new threats to public health and safety; and
       (III) improve the usefulness of those standards; and

       (B) the provision of access that allows people to read 
     technical and voluntary consensus standards that are 
     incorporated by reference into laws and regulations.
       (11) As of the date of enactment of this Act, many 
     standards development organizations make their standards 
     available to the public free of charge online in a manner 
     that does not substantially disrupt the ability of those 
     organizations to earn revenue from the industries and 
     professionals that purchase copies and subscription-access to 
     those standards (such as through read-only access), which 
     ensures that the public may read the current, accurate 
     version of such a standard without significantly interfering 
     with the revenue model that has long supported those 
     organizations and their creation of, and investment in, new 
     standards.
       (12) Through this section, and the amendments made by this 
     section, Congress intends to balance the goals of furthering 
     the creation of standards and ensuring public access to 
     standards that are incorporated by reference into law or 
     regulation.
       (b) Works Incorporated by Reference Into Law.--
       (1) In general.--Chapter 1 of title 17, United States Code, 
     is amended by adding at the end the following:

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

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

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