Pro Codes Act solves.

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

In short, the Pro Codes Act would provide that SDOs would retain copyright in IBR standards so long as they make that material publicly accessible online. The bill defines “publicly accessible” as “displayed for review in a readily accessible manner on a public website.” 133 The bill would not require that the material be made available to print, share, or download. The public accessibility definition also allows SDO websites to require that users create an account or agree to terms of service to access IBR material, so long as there is no monetary cost to the user.134

Supporters of the Pro Codes Act, including SDOs such as the National Fire Protection Association, argue that their work creating standards provides “critical public benefits.”135 If incorporation by reference destroys copyright protection, SDOs maintain that they will no longer be able to fund their activities by publishing, selling, and licensing their standards to professionals who use them.136 SDOs also note that they already permit free viewing of their standards by the public online.137