HR4009-119

What This Bill Does

The Pro Codes Act addresses privately developed technical standards that governments incorporate by reference into law or regulation. It defines incorporated by reference as a law or regulation referencing a standard without copying its text directly. It defines standards development organizations as copyright holders that develop voluntary consensus standards through openness, balance, due process, appeals, and consensus consistent with OMB Circular A-119. A standard that had copyright protection when fixed keeps that protection even after incorporation by reference if the standards organization, within a reasonable time after actual or constructive notice, makes all incorporated portions publicly accessible online at no monetary cost, on a section 508 accessible public website, with a searchable table of contents and index or equivalent aids. Requiring an account or terms of service does not defeat public accessibility if access is free and personally identifiable information is not used without affirmative express consent. In litigation, the party claiming the standards organization failed to satisfy public-access conditions bears the burden of proof. GAO must study how much federal, state, and local governments spend to access standards incorporated by reference, burdens on smaller municipalities, cost-effectiveness of current access mechanisms, and impacts on public services, then report to Congress within two years with mitigation recommendations.

Who Benefits and How

Standards development organizations benefit because incorporated standards can retain copyright protection if free online access conditions are met. Public standards users benefit from no-cost online access to incorporated portions with search aids and accessibility requirements. Municipal governments benefit from a GAO study of costs and burdens tied to acquiring incorporated standards. Federal agencies using standards benefit from a clearer copyright and public-access framework for incorporation by reference. Copyright holders benefit from a burden-of-proof rule favoring standards organizations in noncompliance disputes.

Who Bears the Burden and How

Public access advocates bear the burden because incorporation by reference no longer automatically undermines copyright protection. Copyright challengers must prove a standards organization failed to meet public-access conditions. Standards organizations must provide no-cost accessible online access with search aids for incorporated portions. GAO analysts must study government standard-access costs and report to Congress within two years. Small municipalities may still face costs for non-incorporated materials or implementation unless GAO recommendations lead to changes.

Key Provisions

• Provides copyright retention for standards incorporated by reference if public online access requirements are met.
• Requires no monetary cost, section 508 accessible display, and searchable table of contents and index or equivalent aids.
• Allows account or terms-of-service requirements if access is free and personal information is not used without express consent.
• Places the burden of proving standards-organization noncompliance on the party asserting failure.
• Requires GAO to study government costs of accessing incorporated standards and report within two years.