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Kevin J. Hickey, “Copyright in Standards Incorporated by Reference into Law and the Pro Codes Act,” Congressional Research Service, 09-26-2023, https://sgp.fas.org/crs/misc/R47656.pdf

A bill introduced in the 118th Congress, the Pro Codes Act (H.R. 1631 and S. 835), seeks to address this issue legislatively. The Pro Codes Act would explicitly provide that otherwise copyrightable IBR standards retain their copyright protection even after a government incorporates them into law. At the same time, the bill would require that SDOs make IBR standards publicly accessible online in a readable format at no monetary cost to users. The Pro Codes Act would not require SDOs to make IBR standards available for printing or download, and SDOs could require users to agree to terms and conditions before accessing the standards.

Kevin J. Hickey, “Copyright in Standards Incorporated by Reference into Law and the Pro Codes Act,” Congressional Research Service, 09-26-2023, https://sgp.fas.org/crs/misc/R47656.pdf

For decades, federal courts weighed competing legal arguments about the copyright status of privately authored material that is later copied or incorporated by reference into federal, state, or local laws and regulations.1 A bill introduced in the 118th Congress, the Pro Codes Act,2 seeks to address this issue legislatively. The Pro Codes Act would make clear that copyright protection applies to privately authored, incorporated-by-reference (IBR) standards, while also requiring that the standards be made publicly accessible online in a readable format at no monetary cost to users.3 This report explains the current law and litigation surrounding copyright in IBR standards

Chris Coons, “Protecting and Enhancing Public Access to Codes (Pro Codes) Act of 2023,” https://www.coons.senate.gov/imo/media/doc/pro_codes_act_one_pager.pdf

To fund their efforts, SDOs typically sell copies of their standards to professionals who use them in the course of their business, like builders and developers. As an original work of authorship, SDO standards are protected by copyright.

Kevin J. Hickey, “Copyright in Standards Incorporated by Reference into Law and the Pro Codes Act,” Congressional Research Service, 09-26-2023, https://sgp.fas.org/crs/misc/R47656.pdf

The Pro Codes Act would establish that a standard protected by copyright when it was created “shall retain such [copyright] protection, notwithstanding that the standard is incorporated by reference” into federal, state, or local law.130 The bill would thus supersede Veeck and similar cases that have held that such standards fall into the public domain once incorporated into law or regulation. To retain their copyright, however, SDOs must make “all portions of the standard so incorporated publicly accessible online at no monetary cost” within a “reasonable time.”131 A party challenging an SDO’s copyright based on a failure to comply with this public-access requirement would bear the burden of proof.132

We cannot “make America great again” unless America is secure both at home and in its global position. But what does this have to do with democracy? During the first decade after the 1991 fall of the Soviet Union, President George H. W. Bush’s goal of “a Europe whole and free” and a wider world largely at peace seemed within reach. The deadly threats of the Cold War were gone, and the democratic revolutions that appeared to be sweeping through eastern Europe and elsewhere created optimism as to the continuing progress of a liberal international order. Now, two and a half decades later, that promising trend is being reversed. The authoritarian resurgence in Europe and elsewhere over the past decade has shaken our confidence that liberal democracy, free markets and peaceful borders will continue to dominate the post–Cold War international order. From our being the “sole superpower” in the 1990s, U.S. global influence and effective power are now challenged by China and Russia, the weakening of the European Union and the sharp domestic divisions revealed by the U.S. presidential campaign. The United States and Europe are threatened by radical terrorists, challenged by territorially expansionist autocracies, and targeted by covert action, massive disinformation and propaganda offensives. Russia and China, the world’s two principal autocratic powers, lead the way in consolidating their model domestically, but also in advocating internationally for an alternative authoritarian model based on strident nationalism, autocratic leadership, and repression of human rights and the rule of law. Russia, through its covert intervention in the U.S. election, military actions in Ukraine and support of right-wing populist forces in Europe, is working to undermine the system of liberal institutions, laws and behavioral norms that have bound Europe and the United States. Sadly, this alternative model is gaining ground in Europe and elsewhere. The list includes formerly promising new democracies such as Hungary, Turkey, Thailand, the Philippines—and now even Poland. What is the connection between America’s security and the state of democracy in the world? Democratic countries rarely, if ever, go to war with each other or prey on their neighbors. Democratic systems and free markets support each other and sustain individual and group freedoms. Also, the rule of law, which subsumes all, is best guaranteed by democratic systems. Protection of the democratic order, now under challenge, must therefore be one of the priorities weighed in our strategic decisionmaking analysis and policy process. And democracy promotion via a revised, realistic and targeted approach must remain a fundamental national-security objective for the United States and its allies. At a recent conference at the Woodrow Wilson International Center for Scholars in Washington, DC on this subject, eleven experts of varying political and operational perspectives all concluded that the national-security interests of the United States and its allies not only permit, but require, America to support democracy abroad. Not to do so would ignore an existential threat to democracies, and to the international order that has allowed the United States to remain secure and prosper. The new administration will need a democracy-promotion strategy. We suggest a triage approach, which will concentrate on three categories of countries where external support is most likely to succeed. Excluded from these efforts will be countries like Russia and Uzbekistan, where the effort would be futile and/or discredit democracy promotion by validating regime propaganda that equates these programs with aggressive intrusion into domestic affairs. The most promising cases are found in countries where autocratic regimes have recently fallen or have agreed to a negotiated transition (e.g., Tunisia, Ukraine, Myanmar and Indonesia) or where semi-autocratic governments are visibly weak and opposed by broad-based indigenous movements (Venezuela). The second group is made up of countries undergoing democratic regression resulting from the aggressive nature and partial success of the authoritarian counteroffensive. Existing democracies such as Poland and Hungary must be helped from falling backwards. Emerging democracies such as Ukraine, Moldova and Georgia need assistance in fending off foreign attempts to subvert them. The third group is comprised of nondemocratic countries that fall in between regimes transitioning to democracy and consolidated dictatorships. This category includes autocratic countries such as Armenia, Thailand and Belarus, where the regimes have retained some democratic trappings such as controlled elections to maintain a degree of popular legitimacy. These openings may be used to lay the groundwork for democratic transition through carefully calibrated democracy promotion programs. Understandably, much of the focus of the new U.S. administration will be on countering terrorist threats and dampening the appeal of radical ideology to susceptible young people. Yet, we must pay attention to prospects for democratic transition and meet the authoritarian counteroffensive. At the same time, Americans must reaffirm their own democratic commitments and standards as they manage their economic divisions and challenges. If democracy is to continue to flourish, nothing is more important than being true to American values and principles and protecting them globally.

The system must also be adapted to deal with new issues that were not envisioned when the existing order was designed. Foremost among these issues is emerging and disruptive technology, including AI, additive manufacturing (or 3D printing), quantum computing, genetic engineering, robotics, directed energy, the Internet of things (IOT), 5G, space, cyber, and many others. Like other disruptive technologies before them, these innovations promise great benefits, but also carry serious downside risks. For example, AI is already resulting in massive efficiencies and cost savings in the private sector. Routine tasks and other more complicated jobs, such as radiology, are already being automated. In the future, autonomous weapons systems may go to war against each other as human soldiers remain out of harm’s way.

Yet, AI is also transforming economies and societies, and generating new security challenges. Automation will lead to widespread unemployment. The final realization of driverless cars, for example, will put out of work millions of taxi, Uber, and long-haul truck drivers. Populist movements in the West have been driven by those disaffected by globalization and technology, and mass unemployment caused by automation will further grow those ranks and provide new fuel to grievance politics. Moreover, some fear that autonomous weapons systems will become “killer robots” that select and engage targets without human input, and could eventually turn on their creators, resulting in human extinction.

Cameron F. Kerry, “Small yards, big tents: How to build cooperation on critical international standards,” Brookings Institute, 03-11-2024, https://www.brookings.edu/articles/small-yards-big-tents-how-to-build-cooperation-on-critical-international-standards/

The United States, China, and the European Union (EU), three major players in the global economy, all have recently identified standards as critical to their strategies for AI and other emerging technologies and have propounded strategies to increase their engagement accordingly. This paper analyzes these strategies in the context of the system of international standards development and examines both the need to improve the system to meet broad societal implications of AI and the ways government engagement can undermine bottoms-up, research-driven, and adaptive features that make this system an effective tool of technology policy. The paper concludes with a series of recommendations both for strengthening standards development and for avoiding harm.

Cameron F. Kerry, “Small yards, big tents: How to build cooperation on critical international standards,” Brookings Institute, 03-11-2024, https://www.brookings.edu/articles/small-yards-big-tents-how-to-build-cooperation-on-critical-international-standards/

And yet, the United States, European Union, and China have each identified standards development as critical to strategically important technologies. The White House issued a “National Standards Strategy for Critical and Emerging Technology” in May 2023 that affirms the importance of standards and calls for “[b]olstering U.S. engagement in standards for critical and emerging technology spaces ….”1 In 2022, the European Commission published a standards strategy that called for strengthening the global role of European standardization because “the strategic importance of standards has not been adequately recognized at the cost of EU leadership in standards-setting.”2 The U.S. and EU strategies follow on China’s 2021 outline plan to improve standards development and increase incorporation of international standards because they are “an important aspect of the country’s foundational systems.”3

Lindsay Gorman, “The U.S. Needs to Get in the Standards Game—With Like-Minded Democracies,” Lawfare, 04-02-2020, https://www.lawfaremedia.org/article/us-needs-get-standards-game%E2%80%94-minded-democracies

Technical bodies like 3GPP—and the hundreds of other international-standards-making organizations that set the rules for cyberspace and the future internet—have become unlikely battlegrounds in the geopolitical contest over the cyber and information space. And the Chinese Communist Party (CCP) is using coordinated attention and top-down industrial policy to drive its global success in these technocratic bodies and in the technologies they yield. To ensure the competitiveness of the United States and other democracies in the future of internet technology and the norms of cyber governance around it, the U.S. and its allies need to get in the standards game.

Kirti Gupta, “Testimony for the ITA-NIST-USPTO Listening Session: Innovating Ideas Around Standards and Intellectual Property,” Center for Strategic and International Studies, 10-11-2023, https://www.csis.org/blogs/perspectives-innovation/testimony-ita-nist-uspto-listening-session-innovating-ideas-around

Technology leadership in critical and emerging technology standards are a priority for national security. Governments around the world have recognized the importance of technology standards. China has a “2035 Standards Plan”. The EU published its “Standardization Strategy” in 2022. The U.S. published its “National Standards Strategy” in May of this year.

Eileen Bramlet, “Copyright Alliance Issues Statement Supporting HJC Markup of Pro Codes Act,” Copyright Alliance, 04-17-2024, https://copyrightalliance.org/press-releases/pro-codes-act/

“The Pro Codes Act ensures that codes and standards created by standards development organizations (SDOs) continue to be protected by copyright when they are incorporated by reference into law as long as the SDO makes any codes or standards accessible without charge on a publicly available website. Codes and standards have long been protected by copyright, and the Pro Codes Act does not change that. What the Pro Codes Act does is guarantee that the public has access to any code or standard incorporated by reference into law that is created by an SDO as a condition of such continued protection.

Lindsay Gorman, “The U.S. Needs to Get in the Standards Game—With Like-Minded Democracies,” Lawfare, 04-02-2020, https://www.lawfaremedia.org/article/us-needs-get-standards-game%E2%80%94-minded-democracies

The CCP has seized on the importance of these bodies for the dual and mutually reinforcing objectives of increasing national competitiveness and building international influence on technology adoption and norms of use. With an explicit goal of becoming “a standards-issuing country,” China coordinates national standards-work across government, industry and academia as part of its push to increase international influence. Its “China Standard 2035” plan, led by the Standards Administration of China and its National Academy of Engineering is dedicated to assessing China’s standardization system and developing standards across virtual reality, information technologies, 5G and the internet of things (IoT). As part of its national plan for IoT development, China’s “Special Project Action Plan for Standards Formulation” calls for China to “actively promote the formation of regional and international IoT standardization bodies, win leadership positions on important international committees like ISO/IEC [a joint technical committee of the International Organization for Standardization and the International Electrotechnical Commission] and ITU, and submit and respond to international proposals and motions, in order to increase China’s international influence and competitiveness.” Even state-sponsored academics have applied game theory to optimize China’s strategy in the standardization process.

Many great civilisations have fallen, leaving nothing but cracked ruins and scattered genetics. Usually this results from: natural disasters, resource depletion, economic meltdown, disease, poor information flow and corruption. But we’re luckier than our predecessors because we command a technology that no one else possessed: a rapid communication network that finds its highest expression in the internet. I propose that there are six ways in which the net has vastly reduced the threat of societal collapse. Epidemics can be deflected by telepresence One of our more dire prospects for collapse is an infectious-disease epidemic. Viral and bacterial epidemics precipitated the fall of the Golden Age of Athens, the Roman Empire and most of the empires of the Native Americans. The internet can be our key to survival because the ability to work telepresently can inhibit microbial transmission by reducing human-to-human contact. In the face of an otherwise devastating epidemic, businesses can keep supply chains running with the maximum number of employees working from home. This can reduce host density below the tipping point required for an epidemic. If we are well prepared when an epidemic arrives, we can fluidly shift into a self-quarantined society in which microbes fail due to host scarcity. Whatever the social ills of isolation, they are worse for the microbes than for us. The internet will predict natural disasters We are witnessing the downfall of slow central control in the media: news stories are increasingly becoming user-generated nets of up-to-the-minute information. During the recent California wildfires, locals went to the TV stations to learn whether their neighbourhoods were in danger. But the news stations appeared most concerned with the fate of celebrity mansions, so Californians changed their tack: they uploaded geotagged mobile-phone pictures, updated Facebook statuses and tweeted. The balance tipped: the internet carried news about the fire more quickly and accurately than any news station could. In this grass-roots, decentralised scheme, there were embedded reporters on every block, and the news shockwave kept ahead of the fire. This head start could provide the extra hours that save us. If the Pompeiians had had the internet in 79AD, they could have easily marched 10km to safety, well ahead of the pyroclastic flow from Mount Vesuvius. If the Indian Ocean had the Pacific’s networked tsunami-warning system, South-East Asia would look quite different today. Discoveries are retained and shared Historically, critical information has required constant rediscovery. Collections of learning -- from the library at Alexandria to the entire Minoan civilisation -- have fallen to the bonfires of invaders or the wrecking ball of natural disaster. Knowledge is hard won but easily lost. And information that survives often does not spread. Consider smallpox inoculation: this was under way in India, China and Africa centuries before it made its way to Europe. By the time the idea reached North America, native civilisations who needed it had already collapsed. The net solved the problem. New discoveries catch on immediately; information spreads widely. In this way, societies can optimally ratchet up, using the latest bricks of knowledge in their fortification against risk. Tyranny is mitigated Censorship of ideas was a familiar spectre in the last century, with state-approved news outlets ruling the press, airwaves and copying machines in the USSR, Romania, Cuba, China, Iraq and elsewhere. In many cases, such as Lysenko’s agricultural despotism in the USSR, it directly contributed to the collapse of the nation. Historically, a more successful strategy has been to confront free speech with free speech -- and the internet allows this in a natural way. It democratises the flow of information by offering access to the newspapers of the world, the photographers of every nation, the bloggers of every political stripe. Some posts are full of doctoring and dishonesty whereas others strive for independence and impartiality -- but all are available to us to sift through. Given the attempts by some governments to build firewalls, it’s clear that this benefit of the net requires constant vigilance. Human capital is vastly increased Crowdsourcing brings people together to solve problems. Yet far fewer than one per cent of the world’s population is involved. We need expand human capital. Most of the world not have access to the education afforded a small minority. For every Albert Einstein, Yo-Yo Ma or Barack Obama who has educational opportunities, uncountable others do not. This squandering of talent translates into reduced economic output and a smaller pool of problem solvers. The net opens the gates education to anyone with a computer. A motivated teen anywhere on the planet can walk through the world’s knowledge -- from the webs of Wikipedia to the curriculum of MIT’s OpenCourseWare. The new human capital will serve us well when we confront existential threats we’ve never imagined before. Energy expenditure is reduced Societal collapse can often be understood in terms of an energy budget: when energy spend outweighs energy return, collapse ensues. This has taken the form of deforestation or soil erosion; currently, the worry involves fossil-fuel depletion. The internet addresses the energy problem with a natural ease. Consider the massive energy savings inherent in the shift from paper to electrons -- as seen in the transition from the post to email. Ecommerce reduces the need to drive long distances to purchase products. Delivery trucks are more eco-friendly than individuals driving around, not least because of tight packaging and optimisation algorithms for driving routes. Of course, there are energy costs to the banks of computers that underpin the internet -- but these costs are less than the wood, coal and oil that would be expended for the same quantity of information flow. The tangle of events that triggers societal collapse can be complex, and there are several threats the net does not address. But vast, networked communication can be an antidote to several of the most deadly diseases threatening civilisation. The next time your coworker laments internet addiction, the banality of tweeting or the decline of face-to-face conversation, you may want to suggest that the net may just be the technology that saves us.

Michiel Leenaars, director of strategy at NLnet Foundation and director of the Internet Society’s Netherlands chapter, responded, “What the internet will look like in 50 years will greatly depend on how we act today. Tim Berners-Lee in his 2018 Turing speech referred to the current situation as ‘dystopian,’ and this seems like an adequate overall description. The industry is dominated by extremely pervasive but very profitable business practices that are deeply unethical, driven by perverse short-term incentives to continue along that path. A dark mirror version of the internet on an extractive crash course with democracy and the well-being of humanity at large itself. That is a future I’m not very eager to extrapolate even for another 10 years. My target version of the internet in 50 years – the one I believe is worth pursuing – revolves around open source, open hardware, open content as well as in helping people live meaningful lives supported by continuous education and challenging ideas. Permissionless innovation is a necessary precondition for serving the human potential, but so are critical reflection and a healthy social dialogue avoiding personalized bubbles, AI bias and information overload. The openness of the web and the mobile ecosystem in particular are abysmal, and attention and concentration are endangered human traits. But that can be reversed, I believe. Every day we can start to re-imagine and re-engineer the internet. The information age can and should be an era that brings out the best in all of us, but this will not happen by itself. So, I hope and believe the internet in 50 years is going to be as challenging as the early internet – and hard work for many people that want to see this future emerge.”

Lindsay Gorman, “The U.S. Needs to Get in the Standards Game—With Like-Minded Democracies,” Lawfare, 04-02-2020, https://www.lawfaremedia.org/article/us-needs-get-standards-game%E2%80%94-minded-democracies

Finally, the United States and its allies should adopt a strategic approach to standards-setting that distinguishes the areas where the private sector can continue to lead successfully from those where deeper national and international coordination is needed. Without it, democracies may soon wake up to the reality of an authoritarian internet spanning more and more of the globe.

Cameron F. Kerry, “Small yards, big tents: How to build cooperation on critical international standards,” Brookings Institute, 03-11-2024, https://www.brookings.edu/articles/small-yards-big-tents-how-to-build-cooperation-on-critical-international-standards/

Heightened government attention does not mean that improving standards development systems to meet challenges of emerging technologies should be done primarily by governments. It is incumbent on the U.S. and EU in particular to avoid a national standards development arms race because they are leaders in promoting consensus, research-driven standards, and in upholding a rules-based international order. SDOs, the private sector, civil society, and academia need not only to participate, but to take the lead.

Matthew Kroenig and Bharath Gopalaswamy, “Will disruptive technology cause nuclear war?,” Bulletin of the Atomic Scientists, 11-12-2018, https://thebulletin.org/2018/11/will-disruptive-technology-cause-nuclear-war/

International politics often presents states with conflicts that they can settle through peaceful bargaining, but when bargaining breaks down, war results. Shifts in the balance of power are problematic because they undermine effective bargaining. After all, why agree to a deal today if your bargaining position will be stronger tomorrow? And, a clear understanding of the military balance of power can contribute to peace. (Why start a war you are likely to lose?) But shifts in the balance of power muddy understandings of which states have the advantage.

Olia Kanevskaia Whitaker, “The Saga of Copyrighted Standards: a Perspective on Access to Regulation,” The Research Handbook on Law & Technology, 06-19-2023, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4473104

5. Concluding remarks

Kevin J. Hickey, “Copyright in Standards Incorporated by Reference into Law and the Pro Codes Act,” Congressional Research Service, 09-26-2023, https://sgp.fas.org/crs/misc/R47656.pdf

Given that the Copyright Act does not directly speak to the issue, the scope of the copyright in IBR standards has largely been developed by the courts. Another issue that Congress may consider, then, is whether it wishes to permit continued judicial development in this area, or to intervene through legislation such as the Pro Codes Act. As different regional federal appeals courts have reached different conclusions, legislation may have the benefit of promoting national uniformity on the issue. Alternatively, one may argue courts are better positioned to account for differences in IBR standards and uses of them through case-by-case application of doctrines such as fair use.

National Fire Protection Association, “NFPA Praises Overwhelming Bipartisan Passage of Pro Codes Act,” ASPE Pipeline, 05-06-2024, https://aspe.org/pipeline/nfpa-praises-overwhelming-bipartisan-passage-of-pro-codes-act/

Rigorous voluntary consensus-based standards, developed by nonprofit standards development organizations (SDOs) like NFPA, are critical to the safety of Americans and people around the world. This standards development system has worked effectively and efficiently for more than 125 years.