[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
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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.''.
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