The PCA would strengthen copyright protections, which is vital for SDOs.

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

Current federal policy generally encourages agencies to use privately developed “voluntary consensus standards” instead of “government-unique standards.”4 Private standards-developing organizations (SDOs)5 often develop these standards, which are then used by the government for various purposes. 6 Federal regulations require that standards incorporated by reference into federal regulations be made “reasonably available to interested parties.”7 State and local governments also often rely on IBR standards, and may have differing policies for public access.8

Technical standards—such as communications standards or fire safety and building codes—are typically original works of authorship entitled to copyright protection.9 Copyright protection, when applicable, allows SDOs to prevent third parties from making and distributing unauthorized copies of their standards.10 SDOs may rely on copyright to earn money through selling copies of their standards (e.g., an electrical code handbook) to people who use those standards (e.g., a property developer).11 Copyright may thus allow SDOs to recoup the cost of developing standards, which includes consulting with experts and stakeholders in particular industries and technical areas to reach consensus on effective technical solutions. 12