[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\
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\1\OMB Circular A-119, https://www.whitehouse.gov/wp-content/
uploads/2017/11/Circular-119-1.pdf.
\2\Id.
\3\Id.
\4\Id.
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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\
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\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.
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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\
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\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.
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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\
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\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).
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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\
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\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.
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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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