[Congressional Record Volume 170, Number 118 (Monday, July 22, 2024)]
[House]
[Pages H4658-H4665]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          PROTECTING AND ENHANCING PUBLIC ACCESS TO CODES ACT

  Mr. ISSA. Mr. Speaker, I move to suspend the rules and pass the bill 
(H.R. 1631) to amend title 17, United States Code, to reaffirm the 
importance of, and include requirements for, works incorporated by 
reference into law, and for other purposes, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 1631

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

     SECTION 1. SHORT TITLE.

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

     SEC. 2. FINDINGS.

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

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

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

     SEC. 3. WORKS INCORPORATED BY REFERENCE INTO LAW.

       (a) In General.--Chapter 1 of title 17, United States Code, 
     is amended by adding at the end the following:

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

       ``(a) Definitions.--In this section:
       ``(1) Circular a-119.--The term `Circular A-119' means 
     Circular A-119 of the Office of Management and Budget 
     entitled `Federal Participation in the Development and Use of 
     Voluntary Consensus Standards and in Conformity Assessment 
     Activities', issued in revised form on January 27, 2016.
       ``(2) Incorporated by reference.--
       ``(A) In general.--The term `incorporated by reference' 
     means, with respect to a standard, that the text of a 
     Federal, State, local, or municipal law or regulation--
       ``(i) references all or part of the standard; and
       ``(ii) does not copy the text of that standard directly 
     into that law or regulation.
       ``(B) Application.--The creation or publication of a work 
     that includes both the text of a law or regulation and all or 
     part of a standard

[[Page H4659]]

     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 that conforms with the accessibility 
     requirements of section 508 of the Rehabilitation Act of 1973 
     (29 U.S.C. 794d), including the regulations implementing that 
     section as set forth in part 1194 of title 36, Code of 
     Federal Regulations, or any successor regulation.
       ``(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--
       ``(i) there is no monetary cost to the user to access that 
     material; and
       ``(ii) no personally identifiable information collected 
     pursuant to such a requirement is used without the 
     affirmative and express consent of the user.
       ``(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 and in a format that 
     includes a searchable table of contents and index, or 
     equivalent aids to facilitate the location of specific 
     content.
       ``(c) Burden of Proof.--In any proceeding in which a party 
     asserts that a standards development organization has failed 
     to comply with the requirements under subsection (b) for 
     retaining copyright protection with respect to a standard, 
     the burden of proof shall be on the party making that 
     assertion to prove that the standards development 
     organization has failed to comply with those requirements.''.
       (b) PRO Codes Act Reporting Requirement.--
       (1) In general.--The United States Copyright Office is 
     required to prepare and submit a comprehensive report to the 
     House Judiciary Committee, which shall include--
       (A) a detailed assessment of this Act's effect on case law;
       (B) an analysis of this Act's effectiveness in achieving 
     its stated goals;
       (C) a review of any challenges or obstacles encountered 
     during the implementation process;
       (D) recommendations for legislative or regulatory 
     modifications to improve the effectiveness of this Act; and
       (E) an overview of the impact of this Act on the public, 
     including access to legal information and compliance costs 
     for governments, businesses, and individuals.
       (2) Timeline for submission.--
       (A) The initial report must be submitted within two years 
     of the enactment of this Act.
       (B) Subsequent reports shall be submitted every five years 
     on the anniversary of the first report's submission.
       (c) GAO Study on Disadvantaged Communities.--
       (1) Study directed.--The Comptroller General of the United 
     States shall conduct a study on the potential disparate 
     impact of this Act on historically disadvantaged communities.
       (2) Elements of the study.--The study shall include, but 
     not be limited to:
       (A) An analysis of how limited access to technical 
     standards incorporated in the PRO Codes Act could 
     disproportionately hinder the ability of historically 
     disadvantaged communities to assert their legal rights and 
     advocate for legal reforms.
       (B) An assessment of how the potential costs associated 
     with accessing standards could create additional barriers for 
     residents of historically disadvantaged communities seeking 
     to understand and enforce their rights.
       (C) An examination of potential disparities in outcomes for 
     historically disadvantaged communities arising from the 
     implementation of the PRO Codes Act.
       (D) Recommendations on ways to mitigate any identified 
     disparate impacts on historically disadvantaged communities.
       (3) Report.--The Comptroller General shall submit a report 
     to Congress within two years of the enactment of this Act, 
     detailing the findings of the GAO Study on the impact of PRO 
     Codes on historically disadvantaged communities from 
     paragraphs (1) and (2).
       (d) Study of Costs for States, Cities, Municipalities, 
     Counties, Special Districts, Associated With Standards 
     Incorporated by Reference (SIBR).--
       (1) Requirement for cost analysis.--The Comptroller General 
     of the United States shall conduct a comprehensive study of 
     the costs associated with the implementation of this Act. 
     This study will encompass levels of government, including 
     state, cities, municipalities, counties, and special district 
     governments, to ensure a complete understanding of the 
     potential financial impact.
       (2) Scope of analysis.--The analysis shall include, but not 
     be limited to:
       (A) Fees charged by Standard Development Organizations to 
     state, cities, municipalities, counties, and special district 
     governments for access to standards incorporated by 
     reference.
       (B) An analysis of indirect costs to state, cities, 
     municipalities, counties, and special district governments 
     associated with compliance with this Act.
       (3) Reporting.--The Comptroller General shall submit a 
     report to Congress within two years of the enactment of this 
     Act, detailing the findings of the cost analysis required 
     under paragraph (2). The report shall include recommendations 
     on potential actions to improve cost-effectiveness related to 
     SIBRs.
       (e) U.S. Government Accountability Office (GAO) Study on 
     Consumers.--
       (1) In general.--The Comptroller General of the United 
     States shall conduct a study on the potential impact of this 
     Act on consumers.
       (2) Elements of the study.--
       (A) Implications for consumer protection under this Act.
       (B) Potential for increased costs or confusion among 
     consumers due to new regulations.
       (C) Accessibility of information about rights and 
     protections for consumers under this Act.
       (D) Recommendations to enhance consumer protection and 
     information accessibility.
       (3) Report.--The Comptroller General shall submit a report 
     to Congress within one year of the enactment of this Act, 
     detailing the findings of the GAO Study on the impact of this 
     Act on consumers.
       (f) U.S. Government Accountability Office (GAO) Study on 
     Digital Privacy and Data Protection.--
       (1) In general.--The Comptroller General of the United 
     States shall conduct a study on the potential impact of this 
     Act on digital privacy and data protection.
       (2) Elements of the study.--
       (A) Analysis of how this Act affects the protection of 
     personal data.
       (B) Evaluation of the Act's compliance requirements related 
     to data security.
       (C) Recommendations for strengthening digital privacy 
     protections.
       (3) Report.--The Comptroller General shall submit a report 
     to Congress within 18 months of the enactment of this Act, 
     detailing the findings of the GAO Study on the impact of this 
     Act on digital privacy and data protection.
       (g) U.S. Government Accountability Office (GAO) Study on 
     Access to the Law.--
       (1) In general.--The Comptroller General of the United 
     States shall conduct a study on the impact of this Act 
     specifically on platforms that offer legal codes online at no 
     cost to the public. The study will assess how the Act 
     influences these platforms' operations and the public's 
     access to and understanding of the law.
       (2) Elements of the study.--
       (A) Assessment of how this Act influences the operations of 
     online platforms that provide public access to legal codes 
     and other regulatory documents.
       (B) Evaluation of the Act's provisions that may limit or 
     enhance public accessibility to legal information via these 
     platforms.
       (C) Analysis of potential barriers introduced by the Act 
     that could hinder public understanding of legal standards and 
     codes.
       (D) Recommendations for amendments or new provisions to 
     ensure continued and enhanced public access to legal codes 
     and standards, fostering transparency and legal literacy.
       (3) Report.--The Comptroller General shall submit a report 
     to Congress within two years of the enactment of this Act, 
     detailing the findings of the GAO Study.
       (h) U.S. Government Accountability Office (GAO) Study on 
     Inclusive of Accessibility and Usability Standards for People 
     With Disabilities.--
       (1) In general.--The Comptroller General of the United 
     States shall conduct a study on the impact of this Act on 
     disabled populations, specifically assessing whether the 
     Act's definition of ``publicly accessible'' is sufficiently 
     inclusive of accessibility and usability standards for people 
     with disabilities.
       (2) Elements of the study.--
       (A) Evaluation of how the accessibility provisions of this 
     Act impact the ability of people with disabilities to access 
     and use public codes and standards.
       (B) Examination of current gaps in accessibility that may 
     prevent full participation of disabled individuals in public 
     and legal affairs as affected by the Act.
       (C) Recommendations to ensure this Act aligns with federal 
     accessibility standards and effectively serves the needs of 
     the disabled community.
       (3) Report.--The Comptroller General shall submit a report 
     to Congress within 18 months of the enactment of this Act, 
     detailing the findings of the GAO Study on the accessibility 
     of this Act for disabled populations.
       (i) U.S. Government Accountability Office (GAO) Study on 
     Affordable Housing.--
       (1) In general.--The Comptroller General of the United 
     States shall conduct a study on the potential impact of this 
     Act on the development and accessibility of affordable 
     housing.
       (2) Elements of the study.--
       (A) Analysis of this Act's impact on the costs and 
     regulatory barriers to building affordable housing.
       (B) Evaluation of the Act's impact on the availability of 
     affordable housing units in urban and rural areas.
       (C) Assessment of the Act's cost on affordable housing 
     projects.

[[Page H4660]]

       (3) Report.--The Comptroller General shall submit a report 
     to Congress within two years of the enactment of this Act, 
     detailing the findings of the GAO Study on the impact of this 
     Act on affordable housing.
       (j) U.S. Government Accountability Office (GAO) Study on 
     SDO Access Conditions.--
       (1) In general.--The Comptroller General of the United 
     States shall conduct a study on whether Standards Development 
     Organizations (SDOs) condition access to standards under this 
     Act by requiring users to create accounts, agree to 
     restrictive terms of service, or meet other potentially 
     burdensome conditions.
       (2) Elements of the study.--
       (A) Assessment of the extent to which SDOs impose 
     conditions that could restrict public access to standards and 
     legal codes, such as account creation, agreement to terms of 
     service, or other barriers.
       (B) Evaluation of the impact of these conditions on the 
     public's ability to freely access, distribute, share, and 
     print essential legal information.
       (C) Analysis of potential violations of the fundamental 
     principle that laws should be accessible without undue 
     restrictions, considering the implications for transparency 
     and accountability.
       (D) Recommendations for legislative or regulatory measures 
     to ensure that access to legal information under this Act is 
     not conditioned on undue or discriminatory terms.
       (3) Report.--The Comptroller General shall submit a report 
     to Congress within 18 months of the enactment of this Act, 
     detailing the findings of the GAO Study.
       (k) U.S. Government Accountability Office (GAO) Study on 
     Executive Compensation at SDOs.--
       (1) In general.--The Comptroller General of the United 
     States shall conduct a study on executive compensation within 
     Standards Development Organizations (SDOs), particularly 
     those with substantial revenue streams and tax-exempt status.
       (2) Elements of the study.--
       (A) Analysis of the revenue sources of large SDOs, 
     including details on income from sales of publications, fees 
     for training and certification services, and membership dues.
       (B) Examination of the scale of executive compensation at 
     these organizations, including total executive compensation 
     as a proportion of total revenues and in comparison to 
     industry standards.
       (C) Evaluation of the governance practices related to 
     executive compensation at SDOs, including transparency, 
     accountability, and alignment with nonprofit organization 
     standards.
       (D) Recommendations for potential regulatory or legislative 
     actions to ensure that executive compensation at tax-exempt 
     SDOs remains within reasonable limits and aligns with best 
     practices for nonprofit management.
       (3) Submission.--The Comptroller General shall submit this 
     report to Congress within 18 months of the enactment of this 
     Act, detailing the findings of the GAO.
       (l) U.S. Government Accountability Office (GAO) Study on 
     This Act and Homeowner Costs for Building Code Access.--
       (1) In general.--The Comptroller General of the United 
     States shall conduct a study on how this Act would affect the 
     costs imposed on homeowners' access to building codes.
       (2) Elements of the study.--
       (A) Examination of the financial impact on homeowners, 
     particularly focusing on how these costs might deter 
     necessary maintenance, safety upgrades, and other costs 
     associated with renovations.
       (B) Evaluation of how this Act would affect the 
     availability and affordability of building codes across 
     different regions and income groups.
       (C) Recommendations for improving this Act to make building 
     codes more accessible and affordable for homeowners.
       (3) Report.--The Comptroller General shall submit a report 
     to Congress within 18 months of the enactment of this Act.
       (m) U.S. Government Accountability Office (GAO) on Small 
     Businesses.--
       (1) In general.--The Comptroller General of the United 
     States shall conduct a study on the potential impact of this 
     Act on small businesses.
       (2) Elements of the study.--
       (A) The extent to which compliance burdens are affected by 
     this Act.
       (B) Analysis of small businesses' ability to compete with 
     larger entities under the new regulatory framework.
       (C) Availability and effectiveness of legal resources for 
     small businesses navigating this Act.
       (D) Recommendations to mitigate any identified negative 
     impacts on small businesses.
       (3) Report.--The Comptroller General shall submit a report 
     to Congress within one year of the enactment of this Act, 
     detailing the findings of the GAO Study on the impact of this 
     Act on small businesses.
       (n) U.S. Government Accountability Office (GAO) Study on 
     First Amendment Rights.--
       (1) In general.--The Comptroller General of the United 
     States shall conduct a study on the potential impact of this 
     Act on First Amendment rights, specifically the public's 
     ability to access, read, share, and debate the law, including 
     codes incorporated by reference.
       (2) Elements of the study.--
       (A) Analysis of how this Act may lead standard development 
     organizations to place the law behind paywalls, thus 
     restricting public access to essential legal information and 
     potentially violating First Amendment rights.
       (B) Evaluation of the economic, legal, and social impacts 
     of restricting public access to codes and standards 
     referenced in the Act.
       (C) Examination of precedents and legal interpretations 
     regarding public access to laws and how they align with First 
     Amendment protections.
       (D) Recommendations for legislative or regulatory changes 
     to ensure that all laws and standards referenced in the Act 
     are accessible without undue financial or procedural 
     barriers.
       (3) Report.--The Comptroller General shall submit a report 
     to Congress within one year of the enactment of this Act, 
     detailing the findings of the GAO Study on the impact of this 
     Act on First Amendment rights.
       (o) 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.''.

     SEC. 4. STUDY OF STANDARDS COST TO GOVERNMENTS.

       (a) In General.--The Comptroller General of the United 
     States shall conduct a study on the financial impact to 
     federal, state, and local governments in the United States 
     associated with acquiring access to standards incorporated by 
     reference into law.
       (b) Scope.--The study under subsection (a) shall--
       (1) Analyze the total expenditure by government entities 
     for accessing these standards;
       (2) Assess any financial burdens or resource constraints 
     these costs impose on governments, particularly for smaller 
     municipalities;
       (3) Evaluate the cost-effectiveness of current mechanisms 
     for acquiring these standards; and
       (4) Examine the impacts on public services due to the costs 
     associated with accessing these standards.
       (c) Report.--Not later than 2 years after the date of the 
     enactment of this Act, the Comptroller General shall submit a 
     report to Congress that includes--
       (1) The findings of the study conducted under subsection 
     (a); and
       (2) Recommendations to mitigate any adverse financial 
     impacts identified by the study, including suggestions for 
     legislative or administrative actions as appropriate.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
California (Mr. Issa) and the gentleman from New York (Mr. Nadler) each 
will control 20 minutes.
  Ms. LOFGREN. Mr. Speaker, I claim the time in opposition.
  The SPEAKER pro tempore. Is the gentleman opposed to the motion?
  Mr. NADLER. Mr. Speaker, no.
  The SPEAKER pro tempore. As such, the gentlewoman from California 
(Ms. Lofgren) will control 20 minutes in opposition.


                             General Leave

  Mr. ISSA. Mr. Speaker, I ask unanimous consent that all Members may 
have 5 legislative days in which to revise and extend their remarks and 
include extraneous material on H.R. 1631.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from California?
  There was no objection.
  Mr. ISSA. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, this bill is not without controversy. You will see it 
here today, but this bill couldn't be more important because it 
maintains the balance that for more than 100 years has allowed people 
to have access to the right material necessary to understand the 
complex laws of the building code, the fire code, automotive standards, 
and the like.
  There have been complaints from one side that we don't go far enough, 
that we allow any free access to these copyrighted materials. As you 
will hear today, there are those who believe that they should all be 
free, throwing out more than 200 years of tradition that those who 
produce materials are entitled to their copyright and the protection 
that comes with it.
  Mr. Speaker, I reserve the balance of my time.
  Ms. LOFGREN. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise in opposition to this bill to defend Americans' 
right to access, understand, and debate the law. The Pro Codes Act 
threatens public access to the law and undermines due process by 
keeping essential legal standards hidden behind restrictive barriers. 
Instead of providing open access, the bill offers only limited public 
access.
  Under this flawed bill, individuals would be forced to forfeit 
personal information just to view the standards. The standards would 
not be available in useful formats, preventing users from searching, 
copying, pasting, printing, downloading, or retweeting.
  To get full access to the law, some people would have to pay, 
creating a two-tiered system, a free but limited economy-class access, 
and a full-access version for those who can afford to pay. This is 
neither fair nor just not in keeping with our tradition of everybody 
who is going to be held accountable under the law has to be able to 
fully access the law.

[[Page H4661]]

  Despite bipartisan concerns, we had no hearings, we had multiple 
failed Judiciary Committee markups, and finally, a sparsely attended 
markup. Some are working to rush the Pro Codes Act through here in the 
suspension format.
  Ranking Member Nadler himself, although he supports the bill, did 
note during the markup that since we began consideration of this 
legislation, we missed many opportunities to strengthen the bill 
through a better process. If there was a compromise to be had, we would 
not know because, unfortunately, we were not given an opportunity to 
find out. We should not be bypassing regular order, especially for a 
bill with such far-reaching implications like the Pro Codes Act.
  For years, I fought to preserve the fundamental right of the public 
to access the law. I submitted amicus briefs in multiple court cases 
where certain Standards Development Organizations sued the nonprofit 
Public Resource Organization for posting online legal standards.
  The courts repeatedly side with Public Resource and me, enforcing the 
idea that no one should control who can read and distribute the law.
  In these cases, the SDOs argued that free and full access to the 
codes would financially harm them. Despite Public Resource posting 
incorporated standards for 15 years, the court observed that the SDOs 
produced no quantifiable evidence of past or future market harms. The 
court concluded that free and easy access to the law provided a 
substantial public benefit.
  I would note that while the standard-setting organizations were 
complaining during the years that they were unable to prevent the 
posting of these standards, they made substantial revenue. For example, 
the American Society for Testing and Materials, the year after the 
decision, had a net income of $36 million.
  Mr. Speaker, I include in the Record a link to the records from the 
American Society for Testing and Materials.
  Https://projects.propublica.org/nonprofits/ organizations/231352024.

                              {time}  1715

  Ms. LOFGREN. When a member of the House Judiciary Committee asked 
Shira Perlmutter, the Register of Copyrights and the Director of the 
U.S. Copyright Office, for her opinion of the Pro Codes Act, this is 
what she said: ``The public should have access to standards when they 
are incorporated into the law, because the public does have the right 
of access to the law. While the standards themselves may be protected 
by copyright, the use of them generally falls under fair use as it is 
for the purpose of understanding, using, and applying the law. So at 
present we think the courts are handling this in an appropriate way.''
  If the Copyright Office believes the courts are handling this issue 
appropriately, why are we pushing this bill? We are trying to solve a 
problem that doesn't exist.
  Despite repeatedly losing in courts, some SDOs have turned to 
Congress, using the same failed arguments about financial harm that 
failed to persuade the courts. One of the SDOs that sued has gained 
substantial revenue using other means, manuals and other things that 
they do.
  The proponents claim that the experts who develop these codes should 
be able to charge the public for access once the codes become law. 
Using that same logic, public interest lobbyists would be entitled to 
charge the public to read the laws that they drafted.
  In addition to these flaws, the Pro Codes Act disproportionately 
affects marginalized communities, particularly poor and disabled 
tenants who need access to building codes.
  Organizations like the NAACP have highlighted how inaccessible 
standards would leave low-income communities vulnerable in disputes, 
stating that access to these standards is access to justice.
  Mr. Speaker, I reserve the balance of my time.
  Mr. ISSA. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, where do I begin? The gentlewoman is aware that in 
previous Congresses we have held hearings, and this bill is not new, 
but in fact is in its third iteration before the Congress.
  Additionally, she is right, we did schedule a markup, and the 
gentlewoman objected. We waited, and we scheduled it again. A quorum 
being present, by a vote of 19-4, overwhelmingly it was passed out of 
the Judiciary Committee, the committee of jurisdiction for copyright.
  Just for the purpose of the Speaker, I want to read one clause of the 
Constitution. Article I, Section 8, Clause 8: ``[The Congress shall 
have power] to promote the progress of science and useful arts, by 
securing for limited times to authors and inventors the exclusive right 
to their respective writings and discoveries.''
  Mr. Speaker, that is a solemn obligation of the Constitution. For 
nearly 250 years, we have made sure that, in fact, authors, musicians, 
anyone producing copyrighted material, have had protection. We have 
not, historically, even partially opened that up.
  In this case, we have gone much further on this legislation. We have 
provided a form of fair use. Any citizen can go online and read any 
part of any of these documents, thousands of pages. They can look at 
them, they can take notes. They can do any number of things. What they 
can't do is distribute it to others, circumventing the copyright.
  To put it in perspective, for the first 100-plus years of this, there 
was no controversy. They printed books, and they sold the books, and it 
was a copyright violation if you copied the book, if you made a 
duplicate of it. Nobody argued that because it made common sense.
  This makes common sense, too. We are making 100 percent of the 
material contained in any of these pro codes available. What we are not 
doing is allowing people to say they are giving something that in fact 
they have stolen from the author.
  Mr. Speaker, I reserve the balance of my time.
  Ms. LOFGREN. Mr. Speaker, I reserve the balance of my time.
  Mr. ISSA. Mr. Speaker, I yield 5 minutes to the gentleman from New 
York (Mr. Nadler), the ranking member of the full committee.
  Mr. NADLER. Mr. Speaker, the Pro Codes Act is sensible, bipartisan 
legislation that strikes a balance between copyright protection and 
public access to information, thus resolving a clear uncertainty in the 
law.
  This legislation would allow standards developing organizations, or 
SDOs, to retain their copyrights when their standards are incorporated 
by reference into the law, so long as they make a copy freely available 
online.
  SDOs are organizations that develop and publish standards to govern 
certain highly technical industries. These best practices govern 
everything from consumer safety and household utility installation to 
home electrical wiring and plumbing planning.
  SDOs make sure that your house won't catch on fire, your plumbing is 
up to code, your water boiler is installed correctly, and everything in 
between. You rely on your local contractor, and your contractor relies 
on their SDO standards.
  State and local legislatures, which generally do not have the 
requisite experts on staff to write highly technical standards, often 
choose to incorporate rigorously developed and diligently updated SDO 
standards by reference into the law. In this way, legislators can key 
their State's laws to codes that are regularly updated, as mistakes are 
fixed, new methods are developed, and technological advancements are 
incorporated into best practices.
  However, this practice exists at the crux of a dilemma in American 
intellectual property law today. On one hand, everyone typically 
benefits when local, State, or Federal legislators adopt content 
developed by SDOs into their laws. The law benefits from dynamic safety 
codes created by experts in their fields, and SDOs in turn benefit from 
more customers for their published works. If the copyright to that 
material were taken away, the incentives for the SDOs would disappear 
and the mutually beneficial relationship would no longer exist.
  On the other hand, Americans also have an essential interest in 
knowing that they can access the laws that govern them. Because of this 
principle, once a code is enacted into law, Americans must have access 
to this information because if you can't find the code, you don't know 
how it will affect you.

  The Pro Codes Act seeks to find the middle ground between these two 
competing interests. This legislation would

[[Page H4662]]

allow SDOs to retain their copyrights when their standards are 
incorporated by reference into the law so long as they make a copy 
available online at no cost.
  Although I support this legislation, I do want to note that the bill 
could have been improved further had we held a hearing, as I and others 
had requested. A hearing would have enabled Members to ask questions of 
stakeholders with various viewpoints, to make any necessary 
refinements, and to convince more of our colleagues that this bill is 
the right path forward. Unfortunately, that process did not occur. Be 
that as it may, I still believe that this legislation would improve our 
laws by protecting SDOs' intellectual property rights while ensuring 
that Americans have access to the laws that bind them.
  I thank Chairman Issa and Congresswoman Ross for introducing this 
bipartisan legislation. I urge all Members to support this legislation.
  Ms. LOFGREN. Mr. Speaker, I reserve the balance of my time.
  Mr. ISSA. Mr. Speaker, I yield 2 minutes to the gentlewoman from 
North Carolina (Ms. Ross).
  Ms. ROSS. Mr. Speaker, I rise in support of the Pro Codes Act, which 
I am proud to lead alongside Representative Issa.
  The Pro Codes Act is a commonsense solution that balances providing 
free, public access to codes and standards that have been incorporated 
into law with ensuring that important code development work can 
continue.
  The industry codes and standards that keep us healthy and safe every 
day are created by standards development organizations, SDOs, which 
regularly convene experts to write and modify standards to ensure 
electrical codes, building codes, crisis management codes, and more are 
up to date.
  Importantly, the standards the SDOs put out are approved by consensus 
and adopted by industries voluntarily. However, Congress and Federal 
agencies have recognized repeatedly that government should rely on 
these standards whenever possible, which has led to their incorporation 
into law.
  I firmly believe that codes that have been incorporated into law 
should be available to the public at no cost, and this bill recognizes 
that. It is why it requires these codes to be available online. That 
said, code development costs money, and SDOs cannot operate without 
funding, and they earn that funding by maintaining copyrights to their 
codes, which allows them to sell print copies and access to their work. 
These sales fund code development at no cost to the taxpayer. 
Ultimately, this bill strikes a critical balance between having good, 
safe codes and having public access.
  Mr. Speaker, I urge my colleagues to support this bill.
  Ms. LOFGREN. Mr. Speaker, I include in the Record an article by David 
Halperin from this March titled: ``Congress Should Reject Bill to Let 
Private Groups Control Access to U.S. Laws.''
  The article can be found at the following link: https://
www.republicreport.org/2024/congress-should-reject-bill-to-let-private-
groups-control-access-to-u-s-laws/.
  Ms. LOFGREN. Mr. Speaker, here is a paragraph that is important and 
really places the question before us succinctly: ``In the regime 
posited by the Pro Codes Act, if citizens, or advocates, or 
journalists, or business operators, or lawmakers, or even judges wanted 
to read, quote, or comment on the law, they would have to register and 
provide their personal information to a private SDO, hand-copy the 
words of a standard from a read-only website, and if they quoted too 
much, they would risk being sued by an SDO for copyright infringement. 
That is not the right way to provide access to our laws.''
  Mr. Speaker, I include in the Record a letter signed by 21 groups, 
ranging from the American Library Association to the American 
Federation of State, County and Municipal Employees, or the AFSCME 
union, Center for Democracy and Technology, Electronic Frontier 
Foundation, iFixit, and repair.org. Yes, the right to repair movement 
is threatened by the Pro Codes Act.
  Here is what they said, although the bill does make some publicly 
accessible material online available, this bill would likely `` . . . 
entrench some of the most obstructive current practices. . . . ''
  They note further that courts have recognized ``no one can own the 
law.''
  Last year, the D.C. Circuit stated that legal text falls plainly 
outside the realm of copyright protection, and in 2020 the Supreme 
Court of the United States reaffirmed that if every citizen is presumed 
to know the law, it needs no argument to show that all should have free 
access to its contents.
                                                    April 9, 2024.
     Re: Opposition to H.R. 1631, the ``Protecting and Enhancing 
         Public Access to Codes Act'' (Pro Codes Act)

     Chairman Jim Jordan,
     Committee on the Judiciary,
     House of Representatives, Washington, DC.
     Ranking Member Jerry Nadler,
     Committee on the Judiciary,
     House of Representatives, Washington, DC.
       Dear Chairman Jordan, Ranking Member Nadler, and members of 
     the Committee: The undersigned organizations write to express 
     our strong opposition to the ``Protecting and Enhancing 
     Public Access to Codes Act'' (Pro Codes Act). The trade 
     associations and civil society groups that signed this letter 
     agree with the findings of Congress in the Pro Codes Act that 
     technical standards are critical to the public interest. Our 
     interest is in ensuring that copyright law is not exploited 
     to create a monopoly in which private standards development 
     organizations (SDOs) control access to the codes and 
     regulations that govern public health and safety. Further, 
     courts have found there is no evidence to support the SDOs' 
     claims that they have lost revenue due to the public 
     dissemination of their standards. In addition to the 
     substantive issues outlined in this letter, the undersigned 
     organizations are concerned that the committee has never held 
     an actual hearing on this bill.


     Pro Codes would limit access to publicly beneficial standards

       Under this bill, standards development organizations would 
     retain their copyright in a standard that is incorporated by 
     reference into law, so long as the standard is made 
     ``publicly accessible'' online. However, SDOs often require 
     users to provide their personal information to access the 
     standards, raising privacy concerns. Pro Codes would also 
     entrench some of the most obstructive current practices of 
     standards development organizations, providing read-only 
     access to the codes and limiting their use through 
     restrictive licenses that prohibit copying, printing, and 
     linking. When standards are made available in this way, they 
     are often inaccessible to people with print disabilities; the 
     public is restricted in how they can use and share to the 
     standards; and they must sacrifice their personal privacy for 
     the privilege.
       Providing free public access to the law furthers the 
     purposes of copyright: to allow public access to knowledge. 
     Consider Section 508 of the Rehabilitation Act, which 
     requires federal agencies to make websites and other 
     information technology offerings accessible to people with 
     disabilities. Section 508 incorporates by reference the Web 
     Content Accessibility Guidelines (WCAG) standards set by the 
     World Wide Web Consortium (W3C). Because the public can 
     access these standards, they can look up exactly what federal 
     agencies are required to adhere to when making information 
     available. Without access to the WCAG standards, the public 
     would have fewer tools to hold website owners accountable.


                          No one owns the law

       Although a standard might be developed by an industry group 
     to promote its interests, once it is incorporated into law by 
     reference--typically at the request of the industry group--it 
     belongs to everyone. Courts have recognized that no one can 
     own the law. Last year, the D.C. Circuit stated that legal 
     text ``falls plainly outside the realm of copyright 
     protection.'' In 2020, the Supreme Court of the United States 
     reaffirmed that ``if every citizen is presumed to know the 
     law, it needs no argument to show . . . that all should have 
     free access to its contents.'' By extending copyright 
     protection to the law, Pro Codes is unconstitutional under 
     the First, Fifth, and Fourteenth Amendments, which guarantee 
     the public's right to read, share, and discuss the law.


                Providing access to the law is fair use

       Even if standards incorporated into the law by reference 
     could retain copyright protection, their reproduction would 
     be a fair use. In September 2023, the D.C. Circuit ruled that 
     making standards incorporated by reference publicly available 
     is a lawful fair use that serves a nonprofit, educational 
     purpose of providing the public with a free and comprehensive 
     repository of the law. The court correctly applied copyright 
     law in determining that the substantial public benefits of 
     free and easy access to the law, including government-
     mandated codes and standards, must be considered against any 
     potential monetary losses to the copyright holders.
       The court found that although Public.Resource.org has been 
     posting incorporated standards for fifteen years, ``the 
     plaintiffs have been unable to produce any economic analysis 
     showing that Public Resources activity has harmed any 
     relevant market for their standards. To the contrary, ASTM's 
     sales have increased over that time. . . .'' The court 
     explained that because governments did not update their 
     regulations incorporating standards as frequently

[[Page H4663]]

     as SDOs updated their standards, industry players continued 
     to license the standards, even before their adoptions as 
     laws, to keep current.
       Pro Codes assumes that the fundamental purpose of copyright 
     law is to create monopolies for rights holders, when in fact 
     it is to promote the dissemination of knowledge for the 
     public good. SDOs do not need a copyright incentive; the 
     development of standards advances the economic interests of 
     their members. Although Pro Codes by its terms would not 
     overturn decisions such as ASTM v. PublicResources that found 
     that fair use permitted the third-party posting of an 
     incorporated standard, the intent of the legislation is 
     clearly to put the thumb on the scale against a fair use 
     finding.
       We urge Congress to engage with our organizations and the 
     public to meet its ostensible goal of making mandatory 
     regulations available online for free so people can know, 
     share, and comment on them. Pro Codes will only serve to 
     unnecessarily ration public access to US law.
           Sincerely,
       American Council of the Blind, American Federation of 
     State, County and Municipal Employees (AFSCME); American 
     Foundation for the Blind, American Library Association (ALA), 
     Association of Research Libraries (ARL), Authors Alliance, 
     Center for Democracy & Technology, Copia Institute, eBook 
     Study Group, Electronic Frontier Foundation (EFF), Fight for 
     the Future, Foundation for American Innovation, iFixit, 
     Library Futures, NYU Engelberg Center, Public.Resource.Org 
     (PRO), Repair.org, Program on Information Justice and 
     Intellectual Property Project on the Right to Research, 
     Public Citizen, Public Knowledge, Public.Resource.Org (PRO), 
     Society of American Archivists (SAA), SPARC, Wikimedia 
     Foundation.
  Ms. LOFGREN. Mr. Speaker, I just note that when the standards setting 
organization sued Public.Resource.Org, the D.C. Circuit Court said this 
in ruling for freedom of the law: ``Once a standard is incorporated by 
reference into the law, it effectively becomes part of the law, and the 
public has a right to access it. The court noted that the public's need 
to access the law outweighs the financial interests of the SDOs.''
  As to fair use, the court concluded that Pro's use of the standards 
constituted fair use. The decision considered the nature of the work, 
the purpose and character of the use (nonprofit educational purposes), 
and the effect on the market. It found that the public benefit of free 
and easy access to the law was substantial.
  Finally, the U.S. Supreme Court told us: ``Officials who speak with 
the force of law cannot claim copyright in the works they create in the 
course of their official duties.'' They emphasized that the public must 
have free access to the law, as these works are in the public domain 
once they are incorporated into legal statutes.
  They reaffirmed the government edicts doctrine that held that 
annotations in Georgia's Official Code created by the State legislature 
could not be copyright protected.
  The rule of law needs to be enforced, but also the rule of law means 
that people need to have full access to the law to copy it, to debate 
it, to know it, to understand it, to transmit it. This pro code bill 
would violate those fundamental principles. We should not support the 
bill, and I reserve the balance of my time.
  Mr. ISSA. Mr. Speaker, I continue to reserve.
  Ms. LOFGREN. Does the gentleman have additional speakers?
  Mr. ISSA. Mr. Speaker, I do not have additional speakers at this 
time.
  Ms. LOFGREN. Mr. Speaker, may I inquire how much time is remaining.
  The SPEAKER pro tempore. The gentlewoman has 11 minutes remaining.
  Ms. LOFGREN. Mr. Speaker, I note that in Veeck v. Southern Building 
Code, in the 5th Circuit, a more conservative circuit, they ruled that 
model building codes adopted by reference into law could be copied 
freely. The court reasoned that once a standard is incorporated into 
the law, it becomes public domain material, underscoring the need for 
free access to legal standards.

                              {time}  1730

  I note also the First Circuit, not exactly a liberal bastion, in 
Building Officials & Code Administrators v. Code Technology, found that 
once a model building code has been adopted into law, it enters the 
public domain.
  This case highlighted the importance of public access to laws and 
regulations, reinforcing the notion that such standards should not be 
restricted by copyright claims.
  The proponents of this bill suggest that should we not overturn the 
court decisions, that somehow these standard-setting organizations will 
fail to do the standards that they have done traditionally. There is no 
evidence for that whatsoever.
  As I mentioned earlier in my remarks, the standard-setting 
organizations continue to make millions and millions of dollars in 
revenue even though they lost in court and failed to maintain their 
copyright protection on these incorporated-by-reference measures. That 
is going to continue. There is no evidence whatsoever that that will 
not continue.
  Further, it is very evident--and I think most of the Members of the 
House who served in State legislatures where this usually occurs know--
that the standard-setting organizations usually approach the 
legislative bodies, asking them to incorporate the standards by 
reference. They are not unwilling participants in this measure. They 
are just trying to profit by owning the law, which should not be 
permissible.
  Once a standard developed by an industry group is incorporated by 
reference into law, it belongs to everyone. I will give an example of 
why that would matter.
  In the wake of the 2010 Deepwater Horizon spill in the Gulf of 
Mexico, the oil industry was under heavy scrutiny. The American 
Petroleum Institute eventually posted on its website many of its safety 
standards, including all the standards that had been incorporated by 
reference into Federal law. That was in 2010, before the court 
decisions.
  However, until that decision by the American Petroleum Institute, as 
the Deepwater Horizon poured oil into the Gulf for 5 months, and in the 
weeks after, it had been difficult for citizens, even Members of 
Congress, to evaluate the adequacy of Federal regulations because key 
components of those regulations were hidden behind paywalls.
  In the regime, as I mentioned earlier, even with the Pro Codes Act 
exceptions, in order to comment on or gain access to information, you 
have to give up your data. There may be reasons why a journalist or a 
Member of Congress might not want to give up all of their personal 
information to find out what the law is. That is not the way America 
should work.
  Once you pass the law, the law is owned by the people. It is not 
owned by corporations. It is not owned by associations. It is not owned 
by anybody who developed the standards.
  The people of the United States own the law that governs them, and to 
impinge or impede in any way their access to fully understand the law, 
to debate it, to post it, to complain about it, to be fully American in 
the discussion of that law, that is really contrary to what the Court 
has told us, to what Justice Roberts has told us, and to our history as 
a nation. It is a big mistake.
  I do not challenge the good intentions of the proponents of this 
bill. I am sure they are well-intentioned. It is just that the outcome 
is not permissible. It flies in the face of due process, the First 
Amendment, and the Fifth Amendment, and we should not adopt this bill 
today.
  Mr. Speaker, I reserve the balance of my time.
  Mr. ISSA. Mr. Speaker, may I inquire as to how much time is 
remaining.
  The SPEAKER pro tempore. The gentleman has 11\1/2\ minutes remaining.
  Mr. ISSA. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, there are a couple of things I want to set straight. The 
gentlewoman regularly talks about cost. The bill clearly says at no 
cost. This material has to be available at no cost.
  The gentlewoman continues talking about private information. It makes 
it clear, in the amended portion of this bill, that private information 
is safeguarded. Notwithstanding that, for everyone in America who has 
used a computer, all these entities ask for is, in fact, to log in with 
a name and identification. This facilitates better service when you 
return.
  However, we also all know that anybody can get a free Gmail account 
under any name, so the idea that you are giving out personally 
identifiable information, that is a choice if you use yours rather than 
a one-time-use Gmail or other mail you may have just gotten.
  As a matter of fact, this is no more invasive than when I log in to 
do my

[[Page H4664]]

Wordle daily with The New York Times, and I feel pretty comfortable 
that I am safe there.
  Lastly, I want to make sure we understand that these books and their 
digital versions are not just laws. These books, by testimony even from 
Mr. Massie, a distinguished member of the committee, are how-to books. 
Extensively, Mr. Massie, one of the four votes that sided with Ms. 
Lofgren, in fact, told us how he used the book as a guideline to do 
construction of his own home.
  In open court, he said that he didn't go to get a permit. He wasn't 
trying to comply with the law. He used the book because it taught him 
how to do a good job. He used it sometimes and didn't use it others.
  I am paraphrasing my colleague, and I hope I have done it accurately, 
but in fact, it is clear that there is so much more information than 
just a law.
  We all pore through laws in this body. We know what laws look like. 
Laws are so complex in the way they are written that usually you need a 
separate book to understand them, and this is no exception.
  If we do not protect the copyright here as the Constitution requires, 
we will regret it because, in fact, a building code that says, yes, you 
must have so many electrical plugs between a certain place doesn't tell 
you that you can have more, doesn't tell you how to do more, doesn't 
teach you.

  These books published by the standard-setters for generations have 
been how-to. They have been available in libraries to read, but not to 
make copies of. They have been available online, as the gentlewoman 
said, but, in some cases, without the protections we seek today.
  I want to close this portion of my statement by saying one thing: The 
gentlewoman made a point that some of these organizations do have large 
revenues. Most are nonprofits, and they exist for the benefit of 
producing these standards. This body does not look at a copyright 
holder and say that because a songwriter or musician is making good 
money, his song should be given away for free. How much you make and 
how you spend it, especially for a nonprofit, should never be 
questioned as to whether or not they are entitled to a copyright.
  Mr. Speaker, I reserve the balance of my time, and I am prepared to 
close.
  Ms. LOFGREN. Mr. Speaker, I yield myself the balance of my time.
  Mr. Speaker, I would like to note that the idea that you could 
conceal your identity to access this material is not really a full 
answer to the fact that the Supreme Court has told us no one can own 
the law.
  The point about the revenue going into these associations, it is not 
because the revenue for a copyright holder is material to their rights. 
It is because those who have suggested that violating due process and 
putting the law behind doors is justified because of the financial need 
of the standard-setting organizations are not correct. They don't have 
that need. Even if they did, it would not be sufficient to overcome the 
public's right to know what the law is.
  The Electronic Frontier Foundation put together a little analysis: 
``Access to Law Should Be Fully Open: Tell Congress Not to Be Fooled by 
the Pro Codes Act.''
  Mr. Speaker, I include that analysis in the Record.

                     [From eff.org, Oct. 25, 2023]

 Access to Law Should Be Fully Open: Tell Congress Not To Be Fooled by 
                           the Pro Codes Act

                         (By Corynne McSherry)


           Tell Congress: Access To Laws Should Be Fully Open

       At EFF, we are especially proud of the work we have done 
     helping our client, Public.Resource.Org (PRO), improve public 
     access to the law. Public Resource's mission is to make all 
     government information available to the governed. As part of 
     that mission, it posts safety codes such as the National 
     Electrical Code, on its website, for free, in a fully 
     accessible format--where those codes have been adopted into 
     law by reference.
       You didn't learn about incorporation by reference from 
     Schoolhouse Rock, but it's one of the key ways policymakers 
     create law. A huge portion of the regulations we all live by 
     (such as fire safety codes, or the National Electrical Code) 
     are initially written--by industry experts, government 
     officials, and other volunteers--under the auspices of 
     standards development organizations (SDOs). Federal, state, 
     or municipal policymakers then review the codes and decide 
     whether the standard is a good broad rule. If so, it is 
     adopted into law ``by reference.'' In other words, the 
     regulation cites the code by name but doesn't copy and paste 
     the entire thing into law (useful when the code is long and 
     detailed). For example, if a regulation requires compliance 
     with the National Fire Safety Code, it might simply refer to 
     specific provisions or the code as a whole, rather than 
     copying it in directly. But that doesn't make compliance any 
     less mandatory.
       When a pipeline bursts, journalists might want to 
     investigate whether the pipeline complied with federal 
     regulations, or compare federal, state, and local rules. When 
     a toy is recalled, parents want to know whether its maker 
     followed child safety rules. When a fire breaks out, 
     homeowners and communities want to know whether the building 
     complied with fire safety regulations. Online access to 
     safety regulations helps make that review--and 
     accountability--possible.
       The rub: the SDOs claim to own copyright in these rules, 
     even after they become law, and that they are therefore 
     allowed to sell and otherwise control access to them. Based 
     on that claim, they sued Public Resource for copyright 
     infringement.
       But court after court has recognized that no one can own 
     the law. The Supreme Court held as much in its very first 
     copyright case, and recently reaffirmed it: if ``every 
     citizen is presumed to know the law,'' the Court observed, 
     ``it needs no argument to show . . . that all should have 
     free access to its contents.'' And in September 2023, after a 
     decade of litigation, a federal appeals court held that 
     Public Resource's database was a lawful fair use.
       Which brings us to the latest threat. Having lost in court, 
     the SDOs are now looking to Congress to shore up their 
     copyright claim, via the Pro Codes Act. It's a tricky bit of 
     legislation that seems innocuous if you don't know the 
     context.
       Pro Codes' main provision requires that:
       An original work of authorship otherwise subject to 
     protection under this title that has been adopted or 
     incorporated by reference, in full or in part, into any 
     Federal, State, or municipal law or regulation, shall retain 
     such protection only if the owner of the copyright makes the 
     work available at no monetary cost for viewing by the public 
     in electronic form on a publicly accessible website in a 
     location on the website that is readily accessible to the 
     public.
       Sounds good, right? in fact, it sounds obvious: mandatory 
     regulations should be made available online, for free, so 
     people can more easily know, share, and comment on them. 
     Here's the trick: this language would effectively endorse the 
     claim that SDOs can ``retain'' copyright in the law, as long 
     as they let the public read it online.
       There are many problems with this approach. First and 
     foremost, ``access'' here means read-only, and subject to 
     licensing limits. We already know what that looks like: 
     currently the SDOs that make their codes available to the 
     public online do so through clunky, disorganized, siloed 
     websites, largely inaccessible to the print-disabled, and 
     subject to onerous contractual terms (like a requirement to 
     give up your personal information). The public can't copy, 
     print, or even link to specific portions of the codes. In 
     other words, you can look at the law (as long as you aren't 
     print-disabled and you know what to look for), but you can't 
     share it, compare it, or comment on it. As multiple amici who 
     filed briefs in support of Public Resource explained, the 
     public needs more.
       Second, it doesn't really make sense. The many volunteers 
     who develop these codes neither need nor want a copyright 
     incentive. The SDOs don't need it either--they don't do 
     anything creative (convening volunteers is important work, 
     but not creative work), and they make plenty of profit though 
     trainings, membership fees, and selling standards that 
     haven't been incorporated into law.
       Third, it's unconstitutional under the First, Fifth, and 
     Fourteenth Amendments, which guarantee the public's right to 
     read, share, and discuss the law.
       Finally, there is no need for this bill. It simply mandates 
     that SDOs do badly what Public Resource is already doing, 
     better, for free.
       The Pro Codes Act is a deceptive power grab that will help 
     giant industry associations ration access to huge swaths of 
     U.S. law. Tell Congress not to fall for it.
  Ms. LOFGREN. Mr. Speaker, here is what they say: ``You didn't learn 
about incorporation by reference from Schoolhouse Rock, but it is one 
of the key ways policymakers create law. A huge portion of the 
regulations we all live by, such as fire safety codes, or the National 
Electric Code, are initially written by industry experts, government 
officials, and other volunteers under the auspices of standards 
development organizations, SDOs. Federal, State, or municipal 
policymakers then review the codes and decide whether the standard is a 
good broad rule. If so, it is adopted into law `by reference.' In other 
words, the regulation cites the code by name but doesn't copy and paste 
the entire thing into law (useful when the code is long and detailed). 
For example, if a regulation requires

[[Page H4665]]

compliance with the National Fire Safety Code, it might simply refer to 
specific provisions or the code as a whole, rather than copying it 
directly, but that doesn't make compliance any less mandatory.
  ``When a pipeline bursts, journalists might want to investigate 
whether the pipeline complied with Federal regulations, or compare 
Federal, State, and local rules. When a toy is recalled, parents want 
to know whether its maker followed child safety rules. When a fire 
breaks out, homeowners and communities want to know whether the 
building complied with fire safety regulations. Online access to safety 
regulations helps make that review--and accountability--possible.''
  The SDOs claim copyright in these rules, but the courts have found 
otherwise. They come to us because they don't like the answers that the 
court has given them. They don't like the fact that the Supreme Court 
held as much in its very first copyright case and recently reaffirmed 
it, saying this: ``'Every citizen is presumed to know the law,' and `it 
needs no argument to show . . . that all should have free access' to 
its contents.''
  In September 2023, after a decade of litigation, the Federal appeals 
court held that Public Resource's database was lawful fair use, which 
brings us to the threat that this bill poses for us. It is a bit 
tricky.
  The Pro Codes Act's main provision is that the code that has been 
adopted is protected by copyright. It provides some weak ability to 
access, but the access means read only, subject to licensing limits. We 
know already that when that is done, they are ``clunky, disorganized, 
siloed websites, largely inaccessible to the print-disabled, and 
subject to onerous contractual terms, like a requirement to give up 
your personal information. The public can't copy, print, or even link 
to specific portions of the codes. In other words, you can look at the 
law, as long as you aren't print-disabled and you know what to look 
for, but you can't share it, compare it, or comment on it. As multiple 
amici''--and I helped with some of those briefs--``who filed briefs in 
support of Public Resource explained, the public needs more.
  ``Second, it doesn't really make sense. The many volunteers who 
develop these codes neither need nor want a copyright incentive. The 
SDOs don't need it either.'' As I mentioned earlier, they are doing 
things very well even without the ability to harness improperly, I 
would say, copyright law for profit.
  Finally, it is unconstitutional. There are some who say that this 
bill is important, but it is questionable that Congress can actually 
even overturn through legislation the longstanding court doctrine that 
mandates free and full access to the law. That is primarily because 
those decisions are firmly rooted in the constitutional doctrine of due 
process as outlined in the Fifth and 14th Amendments.
  Additionally, the concept of fair use has been interpreted through 
judicial precedent to align with the freedoms protected by the First 
Amendment.
  I will conclude by saying that to protect public access to the law, 
we should oppose the Pro Codes Act. We should uphold the principles of 
due process and ensure that everyone has a right to access, discuss, 
and understand the laws that govern them.
  We should not turn over owning the law to private-sector entities. 
The law belongs to all of us. It belongs to the public and should not 
be withheld from the American public.
  Mr. Speaker, I yield back the balance of my time.
  Mr. ISSA. Mr. Speaker, I yield myself the balance of my time.
  Mr. Speaker, there are a number of things that I think we want to 
settle for the record here today.
  First of all, the protecting of privacy is important, but let's 
understand, for the first 230 years or 220 years of our existence, we 
didn't have an internet. We printed documents.
  Only the ability to digitally copy somebody's copyrighted material 
and then put it out on the internet created this situation. The courts 
have tried to grapple with the internet, but they failed in this case.
  Let me give you a good example. If you were to open those books or 
the online version of them, you would see diagrams. I am going to tell 
you, Mr. Speaker, I have gone through a few lawbooks in my time. I have 
never seen a diagram. A diagram is more than a law. A diagram or a 
picture or details of how to or multiple alternatives of how one can 
safely do something, all of those things are, in fact, not within the 
law.

                              {time}  1745

  As a matter of fact, the calculation, the formulas on which you can 
calculate different uses, how much, what size wire to use for a certain 
amount of amps over a certain distance, all of those things are 
teaching. These teaching books have been around now for most of our 
time.
  In fact, these organizations have books that they sell in vast 
amounts. It is only those books that basically continue to give them 
revenue. The idea that over time we may obsolete books is an idea that 
we would over time obsolete the ability of these people to create these 
how-to guides without the government paying for them.
  The gentlewoman may be comfortable with the government paying for 
people to meet and produce these things. She may even be comfortable 
with the idea that these things would be printed as the document itself 
in the law, but I am sure she would be uncomfortable looking at that 
much law sitting there and then somebody saying: It doesn't tell me how 
to do it.
  I will tell you one thing about the government. They passed the IRS 
laws, but it takes a legion of private-sector companies to teach you 
how to file your income tax. That is really where we are.
  Whether it is the diagrams or our constitutional responsibility which 
we are meeting here today to ensure that the authors are fairly 
compensated, this bill narrowly provides a balance that enables us to 
continue to support copyright for those who create it and those who 
provide this important service.
  Mr. Speaker, I urge passage, and I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from California (Mr. Issa) that the House suspend the rules 
and pass the bill, H.R. 1631, as amended.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds 
being in the affirmative, the ayes have it.
  Ms. LOFGREN. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further 
proceedings on this motion will be postponed.

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