What This Bill Does
This bill amends federal copyright law to require standards development organizations (groups that create technical standards) to make their standards publicly available online for free when those standards are incorporated by reference into laws and regulations. The bill aims to balance public access to standards that become law with the copyright protection needed for the organizations that create these standards.
Who It Affects
Standards development organizations (private groups that create technical and voluntary consensus standards), federal agencies, state and local governments, industries and professionals who use these standards, and the general public who need to read standards that have become law.
Key Provisions
• Standards development organizations keep their copyright protection for standards that are incorporated by reference into law, but only if they make all parts of the incorporated standard publicly accessible online at no cost within a reasonable time after the standard is incorporated into law (Sec. 3(b))
• "Publicly accessible online" means material displayed for review on a public website in a readily accessible manner, and does not include a monetary cost requirement even if users must create an account or agree to terms of service (Sec. 3(a)(5))
• If someone claims a standards development organization failed to follow these requirements, that person must prove the organization did not comply (Sec. 3(c))
• The bill defines key terms including "incorporated by reference" (when a law references a standard without copying its text directly into the law) and "standards development organization" (a copyright holder that creates voluntary consensus standards following specific procedures) (Sec. 3(a))
What Changes
A new section 123 is added to federal copyright law establishing that standards development organizations can keep copyright protection for standards used in laws only if they provide free public online access to those standards within a reasonable period of time after incorporation.
Important Definitions
• "Incorporated by reference": when a law or regulation references all or part of a standard without copying the standard's text directly into that law or regulation (Sec. 3(a)(2))
• "Standard": a technical standard or voluntary consensus standard as defined in the National Technology Transfer and Advancement Act of 1995 (Sec. 3(a)(3))
• "Standards development organization": a copyright holder that creates voluntary consensus standards using procedures with openness, balance, due process, appeals process, and consensus (Sec. 3(a)(4))
• "Publicly accessible online": material displayed for review on a public website in a readily accessible manner, including situations where users must create a free account or agree to terms of service (Sec. 3(a)(5))
Effective Date
Not specified in bill text
II
118TH CONGRESS
1ST SESSION
S. 835
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.
IN THE SENATE OF THE UNITED STATES
MARCH 16, 2023
Mr. COONS (for himself, Mr. CORNYN, Mr. TILLIS, and Mr. WHITEHOUSE)
introduced the following bill; which was read twice and referred to the
Committee on the Judiciary
A BILL
To amend title 17, United States Code, to reaffirm the
importance of, and include requirements for, works incor-
porated by reference into law, and for other purposes.
Be it enacted by the Senate and House of Representa-
1
tives of the United States of America in Congress assembled,
2
SECTION 1. SHORT TITLE.
3
This Act may be cited as the ‘‘Protecting and En-
4
hancing Public Access to Codes Act’’ or the ‘‘Pro Codes
5
Act’’.
6
SEC. 2. FINDINGS.
7
Congress finds the following:
8
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(1) Congress, the executive branch, and State
1
and local governments have long recognized that the
2
people of the United States benefit greatly from the
3
work of private standards development organizations
4
with expertise in highly specialized areas.
5
(2) The organizations described in paragraph
6
(1) create technical standards and voluntary con-
7
sensus standards through a process requiring open-
8
ness, balance, consensus, and due process to ensure
9
all interested parties have an opportunity to partici-
10
pate in standards development.
11
(3) The standards that result from the process
12
described in paragraph (2) are used by private in-
13
dustry, academia, the Federal Government, and
14
State and local governments that incorporate those
15
standards by reference into laws and regulations.
16
(4) The standards described in paragraph (3)
17
further innovation, commerce, and public safety, all
18
without cost to governments or taxpayers because
19
standards development organizations fund the proc-
20
ess described in paragraph (2) through the sale and
21
licensing of their standards.
22
(5) Congress and the executive branch have re-
23
peatedly declared that, wherever possible, govern-
24
ments should rely on voluntary consensus standards
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•S 835 IS
and have set forth policies and procedures by which
1
those standards are incorporated by reference into
2
laws and regulations and that balance the interests
3
of access with protection for copyright.
4
(6) Circular A–119 of the Office of Manage-
5
ment and Budget entitled ‘‘Federal Participation in
6
the Development and Use of Voluntary Consensus
7
Standards and in Conformity Assessment Activi-
8
ties’’, issued in revised form on January 27, 2016,
9
recognizes the benefits of voluntary consensus stand-
10
ards and incorporation by reference, stating that
11
‘‘[i]f a standard is used and published in an agency
12
document, your agency must observe and protect the
13
rights of the copyright holder and meet any other
14
similar obligations.’’.
15
(7) Federal agencies have relied extensively on
16
the incorporation by reference system to leverage the
17
value of technical standards and voluntary consensus
18
standards for the benefit of the public, resulting in
19
more than 23,000 sections in the Code of Federal
20
Regulations that incorporate by reference technical
21
and voluntary consensus standards.
22
(8) State and local governments have also rec-
23
ognized that technical standards and voluntary con-
24
sensus standards are critical to protecting public
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health and safety, which has resulted in many such
1
governments—
2
(A) incorporating those standards by ref-
3
erence into their laws and regulations; or
4
(B) entering into license agreements with
5
standards development organizations to use the
6
standards created by those organizations.
7
(9) Standards development organizations rely
8
on copyright protection to generate the revenues
9
necessary to fund the voluntary consensus process
10
and to continue creating and updating these impor-
11
tant standards.
12
(10) The people of the United States have a
13
strong interest in—
14
(A) ensuring that standards development
15
organizations continue to utilize a voluntary
16
consensus process—
17
(i) in which all interested parties can
18
participate; and
19
(ii) that continues to create and up-
20
date standards in a timely manner to—
21
(I) account for technological ad-
22
vances;
23
(II) address new threats to public
24
health and safety; and
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(III) improve the usefulness of
1
those standards; and
2
(B) the provision of access that allows peo-
3
ple to read technical and voluntary consensus
4
standards that are incorporated by reference
5
into laws and regulations.
6
(11) As of the date of enactment of this Act,
7
many standards development organizations make
8
their standards available to the public free of charge
9
online in a manner that does not substantially dis-
10
rupt the ability of those organizations to earn rev-
11
enue from the industries and professionals that pur-
12
chase copies and subscription-access to those stand-
13
ards (such as through read-only access), which en-
14
sures that the public may read the current, accurate
15
version of such a standard without significantly
16
interfering with the revenue model that has long
17
supported those organizations and their creation of,
18
and investment in, new standards.
19
(12) Through this Act, and the amendments
20
made by this Act, Congress intends to balance the
21
goals of furthering the creation of standards and en-
22
suring public access to standards that are incor-
23
porated by reference into law or regulation.
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•S 835 IS
SEC. 3. WORKS INCORPORATED BY REFERENCE INTO LAW.
1
(a) IN GENERAL.—Chapter 1 of title 17, United
2
States Code, is amended by adding at the end the fol-
3
lowing:
4
‘‘§ 123. Works incorporated by reference into law
5
‘‘(a) DEFINITIONS.—In this section:
6
‘‘(1) CIRCULAR A–119.—The term ‘Circular A–
7
119’ means Circular A–119 of the Office of Manage-
8
ment and Budget entitled ‘Federal Participation in
9
the Development and Use of Voluntary Consensus
10
Standards and in Conformity Assessment Activities’,
11
issued in revised form on January 27, 2016.
12
‘‘(2) INCORPORATED BY REFERENCE.—
13
‘‘(A) IN
GENERAL.—The term ‘incor-
14
porated by reference’ means, with respect to a
15
standard, that the text of a Federal, State,
16
local, or municipal law or regulation—
17
‘‘(i) references all or part of the
18
standard; and
19
‘‘(ii) does not copy the text of that
20
standard directly into that law or regula-
21
tion.
22
‘‘(B) APPLICATION.—The creation or pub-
23
lication of a work that includes both the text of
24
a law or regulation and all or part of a stand-
25
ard that has been incorporated by reference, as
26
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described in subparagraph (A), shall not affect
1
the status of the standard as incorporated by
2
reference under that subparagraph.
3
‘‘(3) STANDARD.—The term ‘standard’ means a
4
standard or code that is—
5
‘‘(A) a technical standard, as that term is
6
defined in section 12(d) of the National Tech-
7
nology Transfer and Advancement Act of 1995
8
(15 U.S.C. 272 note); or
9
‘‘(B) a voluntary consensus standard, as
10
that term is used for the purposes of Circular
11
A–119.
12
‘‘(4) STANDARDS
DEVELOPMENT
ORGANIZA-
13
TION.—The term ‘standards development organiza-
14
tion’ means a holder of a copyright under this title
15
that plans, develops, establishes, or coordinates vol-
16
untary consensus standards using procedures that
17
incorporate the attributes of openness, balance of in-
18
terests, due process, an appeals process, and con-
19
sensus in a manner consistent with the requirements
20
of Circular A–119.
21
‘‘(5) PUBLICLY ACCESSIBLE ONLINE.—
22
‘‘(A) IN GENERAL.—The term ‘publicly ac-
23
cessible online’, with respect to material, means
24
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that the material is displayed for review in a
1
readily accessible manner on a public website.
2
‘‘(B) RULE OF CONSTRUCTION.—If a user
3
is required to create an account or agree to the
4
terms of service of a website or organization in
5
order to access material online, that require-
6
ment shall not be construed to render the mate-
7
rial not publicly accessible online for the pur-
8
poses of subparagraph (A), if there is no mone-
9
tary cost to the user to access that material.
10
‘‘(b) STANDARDS INCORPORATED
BY REFERENCE
11
INTO LAW OR REGULATION.—A standard to which copy-
12
right protection subsists under section 102(a) at the time
13
of its fixation shall retain such protection, notwithstanding
14
that the standard is incorporated by reference, if the appli-
15
cable standards development organization, within a rea-
16
sonable period of time after obtaining actual or construc-
17
tive notice that the standard has been incorporated by ref-
18
erence, makes all portions of the standard so incorporated
19
publicly accessible online at no monetary cost.
20
‘‘(c) BURDEN
OF PROOF.—In any proceeding in
21
which a party asserts that a standards development orga-
22
nization has failed to comply with the requirements under
23
subsection (b) for retaining copyright protection with re-
24
spect to a standard, the burden of proof shall be on the
25
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party making that assertion to prove that the standards
1
development organization has failed to comply with those
2
requirements.’’.
3
(b) TECHNICAL AND CONFORMING AMENDMENT.—
4
The table of sections for chapter 1 of title 17, United
5
States Code, is amended by adding at the end the fol-
6
lowing:
7
‘‘123. Works incorporated by reference into law.’’.
Æ
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