Authors Alliance is grateful to our Research Assistant, Derek Chipman, for researching the Pro Codes Act and authoring this blog post.
On April 21, Authors Alliannce joined 15 other organizations to express strong opposition to the Protecting and Enhancing Public Access to Codes Act, known as the Pro Codes Act. If passed, the Act would allow private organizations to assert a copyright interest in an “original work of authorship” that is “adopted or incorporated by reference, in full or in part, into any Federal, State or municipal law or regulation” so long as the work is provided “at no monetary cost for viewing by the public in electronic form on a publicly accessible website.” As this post will explain, Authors Alliance opposes this bill, as it limits access and dissemination of laws and regulations that are necessary and even vital for a functioning democracy and robust free speech protections.
Co-sponsored by Representatives Ted Deutch and Darrell Issa, the Pro Codes Act would codify copyright protection for voluntary standards or “codes” incorporated into law by reference. These voluntary standards are initially written by industry experts, government officials, and organizations known as standards development organizations (“SDOs”). According to the General Aviation Manufacturers Association (an SDO itself), SDOs “provide industries with a neutral forum to exchange expertise and set standards.” The National Fire Protection Association (“NFPA”), another SDO, states that SDOs provide “hundreds of technical, industry and scientific standards to the federal government each year[,]” and that “government use of these standards decreases the burden of regulation and the costs of enforcement by conforming regulatory requirements to voluntary, user accepted standards.” The NFPA also asserts that it holds a copyright in its standards and fund its activities through the sale of their standards publications.
These standards are often quite lengthy, such as the Society of Automotive Engineers’s Motor Vehicle Dimensions standards, which is over 78 pages in length but is incorporated by reference into 49 CFR § 571.3, saving the legislature the need to write the entire document into the legislation. Standards incorporated into federal law must be made available to the public, however the only requirement currently is that a hard copy must be deposited into the National Archives, with electronic copies from the Archives being made available at the discretion of the SDO. The Pro Codes Act would officially establish that these incorporated standards are copyrightable, but must be made available on a publicly accessible website. Representative Deutch characterizes the bill as protecting public access and a “win for transparency and public safety.” Representative Issa likewise stated that the bill would “promote transparency in standard setting, and ensure the public can access the rules they are being asked to follow.” SDOs have expressed strong support for the bill, while our co-signers on the letter opposing it largely consist of organizations dedicated to open access and government transparency.
While the sponsors of the bill promote it as a step forward for transparency and access, it could be problematic for both. As David Halperin, Counsel of PublicResurce.Org, explains, this act could allow SDOs as well as other private parties that publish text “later incorporated into a law could use copyright law to block people from reciting or distributing the text . . . so long as they offer that text on a website somewhere.” While it may seem that the bill improves access by requiring the SDOs to post their codes online, it could actually limit access by giving a copyright interest to the SDOs and allowing them control over access. EFF astutely characterizes the proposed bill as a “Wolf in Sheep’s clothing” that could allow SDOs to assert a monopoly over their standards and codes via paywalls and restrictive licensing, likening this outcome to allowing them to “put up tollbooths in front of huge swaths of U.S. Law.” EFF also points out that the mandate that the SDOs make the codes publicly accessible is unnecessary, as the non-profit PublicResource.Org is already making these codes and standards available without burdensome restrictions. PublicResource.Org is a non-profit that promotes access to government records and documents by making them freely available online, and was a co-signer in the letter opposing the Act. As noted earlier, the NFPA and other SDOs claim they have a copyright in their standards even if incorporated into public law. With this theory in mind, certain SDOs launched a lawsuit against PublicResource.Org under a Copyright infringement claim, but a recent district court decision ruled the majority of its sharing was fair use.
The proposed bill could increase litigation for non-profits, but some have postulated the bill may be unconstitutional, given the Supreme Court’s ruling in Georgia v. Public Resource. Authors Alliance has previously covered this case, but importantly, the court held that “no one can own the law” under the government edicts doctrine, regardless of whether the material itself carried the force of law. Importantly, the court stated if “every citizen is presumed to know the law[,]” then “all should have free access to its contents.” The codes and standards incorporated by reference are vital to understanding the laws citizens are subject to and are a critical piece of the laws themselves. Without being able to access and disseminate these codes like regular legal codes, free speech is stifled, and the public could be unable to discuss critical pieces of legislation. As stated in the letter, giving an authorship interest to private entities for public laws would give these private actors the ability to control access via paywalls, demands of personal information, and to control the very format they are presented in, raising accessibility issues. Promoting the free exchange of ideas and fostering public discourse is key to a heathy democracy and society, and allowing private actors to control how critical pieces of public law are viewed and disseminated works against this.
Laws and legislation belong in the public domain, and strong access allows codes and standards that affect everyday life to be dispersed more rapidly and widely. By removing barriers to access, these standards could be more easily understood and studied by the public and even improved upon through the free exchange of knowledge. Requiring only that the text of codes incorporated by reference into public are made available on a website does not promote transparency if what is given in exchange is a monopoly power that curtails the copying and dissemination of that information.
Authors Alliance will be monitoring the progress of the Pro Codes Act and will keep our readers appraised of any new developments.