Voluntary consensus standards have become an essential but unseen part of everyday life. From ensuring your apartment building’s elevator is safe to enabling your router to get online, privately developed standards greatly impact modern life. A bill quietly percolating in Congress may impact this typically quiet intersection of law, policy, and regulation. The Protecting and Enhancing Public Access to Codes Act (“Pro Codes Act” (H.R. 1631)) permits standards development organizations (SDOs) to retain copyright protection when their standards are incorporated by reference into law, so long as they make a free version of the code available online. I take no position on this legislation and acknowledge the thoughtful arguments on both sides of this debate. I instead write to highlight how this below-the-radar legislation raises interesting and unintended intellectual property and takings issues with potentially far-reaching consequences.
The key players here are SDOs—typically private groups of industry experts who draft technical standards. Given the expertise that goes into drafting these standards, local, state, and federal governments often incorporate them into regulations by reference. Often, SDOs do not write standards for government use; many standards are authored for private sector guidance. Many SDOs derive significant revenues from licensing or selling copies of the standards. For example, many standards are only available for private viewing behind paywalls. However, government agencies may incorporate these same standards into regulations without the SDOs’ knowledge or consent. This creates tension between SDOs’ understandable wish to be compensated for the fruits of their labor and the regulated public’s need for open access to these standards.
SDOs also face uncertainty about whether the government edicts doctrine—which denies copyright protection to works created by government officials—extends to private entities’ work when it is incorporated into government regulations. At least some cases suggest it may. As the D.C. Circuit stated in American Society for Testing and Materials v. Public.Resource.Org, legal text “falls plainly outside the realm of copyright protection.”
On the surface, the Pro Codes Act aims to strike a fair balance between competing concerns over fair compensation and public access. Its core provision states:
A standard to which copyright protection subsists . . . 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.
As Sen. Chris Coons (D-DE), one of the bill’s proponents and typically a voice favoring intellectual property protection argues, this law will “ensure that a standard does not lose its copyright protection by virtue of having been incorporated by reference into law or regulation, provided that the standard is available for free viewing on a publicly accessible website.”
Other prominent backers of the bill include Senators John Cornyn (R-TX), Thom Tillis (R-NC), and Sheldon Whitehouse (D-RI). Several trade associations have also voiced support for the legislation, including the National Fire Protection Association, the American Society of Heating, Refrigerating, and Air-Conditioning Engineers, and the International Association of Plumbing and Mechanical Officials.
Proponents argue that no one owns the law. If standards are incorporated by reference, the public needs free, easy access to them. Proponents also argue SDOs should not be able to continue to profit from codes that have become law by requiring paywalls or other barriers to access. They argue the Act is “essential towards protecting this transparent and balanced system, the value of which is well recognized in the U.S. and abroad.”
But others have noted this law may (inadvertently) pose a Hobson’s Choice for SDOs. After all, what good are copyright protections after the SDO publishes the material online for free? Opponents have argued the Pro Codes Act will bankrupt the SDO field entirely, getting rid of the very standards lawmakers hope to preserve. Trade associations that have voiced opposition include the American Society of Mechanical Engineers, SPARC, Authors Alliance, Public Citizen, and the Electronic Frontiers Foundation.
Some opponents also cite foreign competition and security concerns. Many technical standards contain confidential information attractive to U.S. adversaries. Other critics argue the law might disincentivize SDO growth, creating a vacuum to be potentially filled by standard-creating bodies in competing jurisdictions, with foreign adversaries becoming standard-setters that bind Americans to regulations, especially in emerging technologies.
For these reasons, the Act raises novel issues for intellectual property protection and federal takings law. Drafting standards is resource-intensive, and SDOs rely on copyright-generated income. Thus, can a government force a private entity to effectively forfeit copyright protection because the state chose to incorporate the standard? That issue may depend on whether the legislation differentiates between SDOs that desire incorporation of their standards into public codes and those whose standards are incorporated without consent.
These issues are vexing and complex. Americans must have free and fair access to laws and regulations, but Americans also lose when the incentives to create voluntary standards are diminished. Given the potential impact on the standards industry and copyright more generally, the Pro Codes Act should not move through the legislative process in obscurity.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].