Current practices are highly obstructive, and that would get even worse if copyright protections were expanded.

Opposition Letter, “Re: Opposition to S. 835, the ‘‘Protecting and Enhancing Public Access to Codes Act’’ (Pro Codes Act),” 02-07-2024, https://cdt.org/wp-content/uploads/2024/02/Letter-Opposing-Pro-Codes-Act.pdf

Under this bill, standards development organizations would retain their copyright in a standard that is incorporated by reference into law, so long as the standard is made “publicly accessible” online. However, SDOs often require users to provide their personal information to access the standards, raising privacy concerns. Pro Codes would also entrench some of the most obstructive current practices of standards development organizations, providing read-only access to the codes and limiting their use through restrictive licenses that prohibit copying, printing, and linking. When standards are made available in this way, they are often inaccessible to people with print disabilities; the public is restricted in how they can use and share to the standards; and they must sacrifice their personal privacy for the privilege.

Providing free public access to the law furthers the purposes of copyright: to allow public access to knowledge. Consider Section 508 of the Rehabilitation Act, which requires federal agencies to make websites and other information technology offerings accessible to people with disabilities. Section 508 incorporates by reference the Web Content Accessibility Guidelines (WCAG) standards set by the World Wide Web Consortium (W3C). Because the public can access these standards, they can look up exactly what federal agencies are required to adhere to when making information available. Without access to the WCAG standards, the public would have fewer tools to hold website owners accountable.

No one owns the law

Although a standard might be developed by an industry group to promote its interests, once it is incorporated into law by reference–typically at the request of the industry group–it belongs to everyone. Courts have recognized that no one can own the law. Last year, the D.C. Circuit stated that legal text “falls plainly outside the realm of copyright protection.”2 In 2020, the Supreme Court of the United States reaffirmed that “if every citizen is presumed to know the law, it needs no argument to show . . . that all should have free access to its contents.”3 By extending copyright protection to the law, Pro Codes is unconstitutional under the First, Fifth, and Fourteenth Amendments, which guarantee the public’s right to read, share, and discuss the law.