[House Report 118-601]
[From the U.S. Government Publishing Office]


118th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     118-601

======================================================================


 
          PROTECTING AND ENHANCING PUBLIC ACCESS TO CODES ACT

                                _______
                                

 July 22, 2024.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

    Mr. Jordan, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 1631]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred 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, 
having considered the same, reports favorably thereon with an 
amendment and recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     7
Background and Need for the Legislation..........................     8
Hearings.........................................................     9
Committee Consideration..........................................     9
Committee Votes..................................................    10
Committee Oversight Findings.....................................    25
New Budget Authority and Tax Expenditures........................    25
Congressional Budget Office Cost Estimate........................    25
Committee Estimate of Budgetary Effects..........................    26
Duplication of Federal Programs..................................    26
Performance Goals and Objectives.................................    26
Advisory on Earmarks.............................................    26
Federal Mandates Statement.......................................    26
Advisory Committee Statement.....................................    26
Applicability to Legislative Branch..............................    26
Section-by-Section Analysis......................................    26
Changes in Existing Law Made by the Bill, as Reported............    27

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

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

SEC. 2. FINDINGS.

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

SEC. 3. WORKS INCORPORATED BY REFERENCE INTO LAW.

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

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

  ``(a) Definitions.--In this section:
          ``(1) Circular a-119.--The term `Circular A-119' means 
        Circular A-119 of the Office of Management and Budget entitled 
        `Federal Participation in the Development and Use of Voluntary 
        Consensus Standards and in Conformity Assessment Activities', 
        issued in revised form on January 27, 2016.
          ``(2) Incorporated by reference.--
                  ``(A) In general.--The term `incorporated by 
                reference' means, with respect to a standard, that the 
                text of a Federal, State, local, or municipal law or 
                regulation--
                          ``(i) references all or part of the standard; 
                        and
                          ``(ii) does not copy the text of that 
                        standard directly into that law or regulation.
                  ``(B) Application.--The creation or publication of a 
                work that includes both the text of a law or regulation 
                and all or part of a standard that has been 
                incorporated by reference, as described in subparagraph 
                (A), shall not affect the status of the standard as 
                incorporated by reference under that subparagraph.
          ``(3) Standard.--The term `standard' means a standard or code 
        that is--
                  ``(A) a technical standard, as that term is defined 
                in section 12(d) of the National Technology Transfer 
                and Advancement Act of 1995 (15 U.S.C. 272 note); or
                  ``(B) a voluntary consensus standard, as that term is 
                used for the purposes of Circular A-119.
          ``(4) Standards development organization.--The term 
        `standards development organization' means a holder of a 
        copyright under this title that plans, develops, establishes, 
        or coordinates voluntary consensus standards using procedures 
        that incorporate the attributes of openness, balance of 
        interests, due process, an appeals process, and consensus in a 
        manner consistent with the requirements of Circular A-119.
          ``(5) Publicly accessible online.--
                  ``(A) In general.--The term `publicly accessible 
                online', with respect to material, means that the 
                material is displayed for review in a readily 
                accessible manner on a public website 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.
          (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.

                          Purpose and Summary

    H.R. 1631, the Protecting and Enhancing Public Access to 
Codes Act, introduced by Rep. Darrell Issa (R-CA), allows 
standards development organizations (SDOs) to retain copyright 
protection on their standards that are incorporated by 
reference into federal, state, and local laws if they make the 
incorporated portions publicly available online at no monetary 
cost. Recently, certain activist organizations have begun to 
have success convincing courts to set aside the SDOs' copyright 
rights, thereby depriving the SDOs of ownership over their 
work. By allowing SDOs to retain copyright protections if they 
make the incorporated portions publicly available, this bill 
strikes an appropriate balance between ensuring the public's 
access to standards imposed by law and ensuring that SDOs 
retain the ability to be compensated for their work.

                Background and Need for the Legislation

    For decades, the Office of Management and Budget (OMB) has 
directed federal agencies, where possible and appropriate, to 
use technical and voluntary consensus standards developed by 
private sector organizations.\1\ The use of these standards 
eliminates the costs and burdens of the government developing 
its own standards, decreases the costs of government 
procurement, eases compliance burdens on private industry, and 
promotes economic efficiency.\2\ Such standards are commonly 
developed by SDOs that use processes based on openness, 
consensus among most participants, balancing of interests, and 
procedural transparency and fairness.\3\ These SDOs also apply 
considerable specialized expertise and experience to standards 
development.\4\
---------------------------------------------------------------------------
    \1\OMB Circular A-119, https://www.whitehouse.gov/wp-content/
uploads/2017/11/Circular-119-1.pdf.
    \2\Id.
    \3\Id.
    \4\Id.
---------------------------------------------------------------------------
    Recognizing the value of these privately-developed 
technical and voluntary consensus standards, Congress passed 
the National Technology Transfer and Advancement Act of 1995. 
This law included a provision requiring the federal government 
to ``use technical standards that are developed or adopted by 
voluntary consensus standards bodies'' when developing and 
promulgating policies, which is also commonplace among state 
and local governments.\5\ OMB subsequently issued Circular A-
119 on ``Federal Participation in the Development and Use of 
Voluntary Consensus Standards and in Conformity Assessment 
Activities,'' setting forth guidelines for the use of such 
standards, including incorporation by reference into federal 
regulations and other policy documents.\6\
---------------------------------------------------------------------------
    \5\National Technology Transfer and Advancement Act of 1995, Pub. 
L. No. 104-113, Sec. 12(d)(1), 110 Stat. 775, 783 (1995).
    \6\Supra note 1.
---------------------------------------------------------------------------
    When a standard or relevant portion thereof is fully 
reproduced in a law or regulation, the public's need to access 
the standard is met because the government makes the law or 
regulation publicly available. When the standard is only 
incorporated by reference, however, the public requires 
independent access to the standard, or relevant portion 
thereof, to understand the law and the requirements for 
compliance.
    As recognized in OMB's Circular A-119, use or incorporation 
of private sector standards does not per se vitiate the 
copyright protection over those standards and, in fact, directs 
federal agencies to ``observe and protect the rights of the 
copyright holder'' (typically the standards development 
organization) when private sector standards are used and 
published in agency documents.\7\ In the case of incorporation 
by reference, the copyright owner's rights are implicated not 
only by the standard's use by the government but also by the 
public.\8\
---------------------------------------------------------------------------
    \7\Id.
    \8\Isaiah Poritz, Copyrights Are Murky for Laws Referring to 
Outside Safety Codes, Bloomberg Law, Mar. 24, 2023, https://
news.bloomberglaw.com/ip-law/copyrights-are-murky-for-laws-referring-
to-outside-safety-codes.
---------------------------------------------------------------------------
    Like any written work, such as books, online articles, 
product manuals, authors of a standard own a copyright to their 
work. All copyrights grant to their owners certain rights, 
including exclusive rights over copying and distribution of 
their copyrighted work.\9\ These rights allow copyright holders 
to be compensated, such as by selling subscriptions or copies 
of their work or licensing their work to others in exchange for 
royalties. SDOs typically use this revenue to fund their 
standards development activities, which can be a resource-
intensive and time-consuming process involving hundreds of 
people.\10\ A recent decision by the U.S. Court of Appeals for 
the D.C. Circuit, however, held that an organization's 
unauthorized copying and online publication of an SDO's 
copyrighted standards was fair use and denied a request for an 
injunction to block the organization's activities.\11\
---------------------------------------------------------------------------
    \9\17 U.S.C. 106.
    \10\IEEE, How are standards developed? (Jan. 12, 2021), https://
standards.ieee.org/beyond-standards/how-standards-are-made/.
    \11\Am. Soc'y for Testing and Materials v. Public.Resource.Org, 
Inc., No. 22-7063, slip op. (Sep. 12, 2023).
---------------------------------------------------------------------------
    H.R. 1631 addresses the balance needed between protecting 
the intellectual property (IP) of SDOs and their ability to 
fund their activities on one hand, and the public's need to 
access standards that have been incorporated by reference into 
laws or regulations. H.R. 1631 clarifies that copyright owners 
retain protection for their standards in such cases, but only 
if they provide online access to the public within a reasonable 
period of time after the adoption of the standard into the law 
or regulation. This ensures that the public's needs are met 
either because the copyright owner complied with the 
requirement for online public access, or because the copyright 
owner failed to comply and, therefore, copyright protection was 
not retained. This strikes a balance between the needs of the 
public on the one hand, and the importance of IP rights on the 
other. Such IP rights are important to many SDOs because they 
derive significant revenue from licensing copyrights on their 
standards, which is necessary to support their standards 
development activities.\12\
---------------------------------------------------------------------------
    \12\Jim Pauley, Pro-Codes bill filed to preserve safety code 
copyright (Mar. 3, 2022), https://www.nfpa.org/News-and-Research/
Publications-and-media/Blogs-Landing-Page/NFPA-Today/Blog-Posts/2022/
03/03/Pro-Codes-bill-filed-to-preserve-safety-code-copyright.
---------------------------------------------------------------------------

                                Hearings

    For the purposes of clause 3(c)(6)(A) of House rule XIII, 
the following hearing was used to develop H.R. 1631: 
``Oversight of the U.S. Copyright Office,'' a hearing held on 
September 27, 2023, before the Subcommittee on Courts, 
Intellectual Property, and the Internet of the Committee on the 
Judiciary. The Subcommittee heard testimony from the following 
witnesses:
           Ms. Shira Perlmutter, Register of Copyrights 
        and Director of the U.S. Copyright Office
    The hearing addressed the U.S. Copyright Office's 
operations and a number of developments in copyright law, 
including the use of artificial intelligence by creators and 
the rights of private standards development organizations.

                        Committee Consideration

    On April 17, 2024, the Committee met in open session and 
ordered the bill, H.R. 1631, favorably reported with an 
amendment in the nature of a substitute, by a roll call vote of 
19 to 4, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of House rule XIII, the 
following roll call votes occurred during the Committee's 
consideration of H.R. 1631:
    1. Vote on Amendment #1 to H.R. 1631 ANS, offered by Ms. 
Ross, passed 15-0
    2. Vote on Amendment #2 to H.R. 1631 ANS, offered by Ms. 
Lofgren--failed 3-15
    3. Vote on Amendment #3 to H.R. 1631 ANS, offered by Ms. 
Lofgren--failed 2-13
    4. Vote on Amendment #4 to H.R. 1631 ANS, offered by Ms. 
Lofgren--failed 2-14
    5. Vote on Amendment #5 to H.R. 1631 ANS, offered by Ms. 
Lofgren--failed 2-14
    6. Vote on Amendment #7 to H.R. 1631 ANS, offered by Ms. 
Lofgren--failed 2-13
    7. Vote on Amendment #9 to H.R. 1631 ANS, offered by Ms. 
Lofgren--failed 3-14
    8. Vote on Amendment #10 to H.R. 1631 ANS, offered by Ms. 
Lofgren--passed 14-1
    9. Vote on Amendment #11 to H.R. 1631 ANS, offered by Ms. 
Lofgren--failed 5-10
    10. Vote on Amendment #12 to H.R. 1631 ANS, offered by Ms. 
Lofgren--failed 7-10
    11. Vote on Amendment #13 to H.R. 1631 ANS, offered by Ms. 
Lofgren--failed 3-13
    12. Vote on Amendment #14 to H.R. 1631 ANS, offered by Mr. 
Gaetz--failed 5-11
    13. Vote on Amendment #16 to H.R. 1631 ANS, offered by Mr. 
Gaetz--failed 5-12
    14. Vote on favorably reporting H.R. 1631, as amended--
passed 19-4

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                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of House rule XIII, the 
Committee advises that the findings and recommendations of the 
Committee, based on oversight activities under clause 2(b)(1) 
of rule X of the Rules of the House of Representatives, are 
incorporated in the descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives does not apply where a cost estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974 has been timely submitted prior to filing of the report 
and is included in the report. Such a cost estimate is included 
in this report.

               Congressional Budget Office Cost Estimate

    With respect to the requirement of clause 3(c)(3) of rule 
XIII of the Rules of the House of Representatives and section 
402 of the Congressional Budget Act of 1974, the Committee has 
received the enclosed cost estimate for H.R. 1631 from the 
Director of the Congressional Budget Office:

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    H.R. 1631 would ensure that a technical or voluntary 
consensus standard created by a private standards development 
organization retains copyright protection when the standard is 
incorporated by reference into a federal, state, or local law 
or regulation if the organization makes the standard publicly 
accessible online.
    CBO estimates that the cost for the U.S. Copyright Office 
to develop guidance for such organizations would be 
insignificant. Any related spending would be subject to the 
availability of appropriated funds.
    The CBO staff contact for this estimate is David Hughes. 
The estimate was reviewed by H. Samuel Papenfuss, Deputy 
Director of Budget Analysis.
                                         Phillip L. Swagel,
                             Director, Congressional Budget Office.

                Committee Estimate of Budgetary Effects

    With respect to the requirements of clause 3(d)(1) of rule 
XIII of the Rules of the House of Representatives, the 
Committee adopts as its own the cost estimate prepared by the 
Director of the Congressional Budget Office pursuant to section 
402 of the Congressional Budget Act of 1974.

                    Duplication of Federal Programs

    Pursuant to clause 3(c)(5) of House rule XIII, no provision 
of H.R. 1631 establishes or reauthorizes a program of the 
federal government known to be duplicative of another federal 
program.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
House rule XIII, H.R. 1631 would allow standards development 
organizations to retain copyright protection on their standards 
that are incorporated by reference into federal, state, and 
local laws if they make the incorporated portions publicly 
available online at no monetary cost.

                          Advisory on Earmarks

    In accordance with clause 9 of House rule XXI, H.R. 1631 
does not contain any congressional earmarks, limited tax 
benefits, or limited tariff benefits as defined in clauses 
9(d), 9(e), or 9(f) of House rule XXI.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                  Applicability to Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act (Pub. L. 104-
1).

                      Section-by-Section Analysis


Sec. 1. Short title

    The ``Protecting and Enhancing Public Access to Codes Act'' 
or ``Pro Codes Act.''

Sec. 2. Findings

    This section makes findings about the value of technical 
and voluntary consensus standards to the public interest, the 
need for standards development organizations to retain 
copyright protection on those standards, the importance of 
public access to standards incorporated by reference into laws 
or regulations, and the need to balance these interests.

Sec. 3. Works incorporated by reference into law

    This section provides that a technical or voluntary 
consensus standard authored by a private standards development 
organization, which is subsequently incorporated by reference 
in a federal, state, or local law or regulation, retains 
copyright protection so long as the standard is made publicly 
accessible online within a reasonable period of time at no 
monetary cost. This section also requires a series of reports 
from the U.S. Copyright Office and the Government 
Accountability Office about this bill's effects on various 
entities and the law.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

                      TITLE 17, UNITED STATES CODE



           *       *       *       *       *       *       *
            CHAPTER 1--SUBJECT MATTER AND SCOPE OF COPYRIGHT

Sec.
101. Definitions.
     * * * * * * *
123. Works incorporated by reference into law.

           *       *       *       *       *       *       *


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 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.

           *       *       *       *       *       *       *


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