[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1631 Reported in House (RH)]
<DOC>
Union Calendar No. 501
118th CONGRESS
2d Session
H. R. 1631
[Report No. 118-601]
To amend title 17, United States Code, to reaffirm the importance of,
and include requirements for, works incorporated by reference into law,
and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 17, 2023
Mr. Issa (for himself and Ms. Ross) introduced the following bill;
which was referred to the Committee on the Judiciary
July 22, 2024
Additional sponsors: Mr. Raskin, Ms. Titus, Mr. Nehls, Mr. Moran, Mr.
Lieu, Mr. Neguse, Mr. Cline, Mr. Fitzgerald, Mr. Kiley, Mr. Moore of
Alabama, Ms. Jackson Lee, Ms. Caraveo, Mr. Yakym, Mr. LaLota, Mr.
Norcross, Mr. Bishop of North Carolina, Mr. Bentz, and Mr. Gooden of
Texas
July 22, 2024
Reported with an amendment, committed to the Committee of the Whole
House on the State of the Union, and ordered to be printed
[Strike out all after the enacting clause and insert the part printed
in italic]
[For text of introduced bill, see copy of bill as introduced on March
17, 2023]
_______________________________________________________________________
A BILL
To amend title 17, United States Code, to reaffirm the importance of,
and include requirements for, works incorporated by reference into law,
and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protecting and Enhancing Public
Access to Codes Act'' or the ``Pro Codes Act''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Congress, the executive branch, and State and local
governments have long recognized that the people of the United
States benefit greatly from the work of private standards
development organizations with expertise in highly specialized
areas.
(2) The organizations described in paragraph (1) create
technical standards and voluntary consensus standards through a
process requiring openness, balance, consensus, and due process
to ensure all interested parties have an opportunity to
participate in standards development.
(3) The standards that result from the process described in
paragraph (2) are used by private industry, academia, the
Federal Government, and State and local governments that
incorporate those standards by reference into laws and
regulations.
(4) The standards described in paragraph (3) further
innovation, commerce, and public safety, all without cost to
governments or taxpayers because standards development
organizations fund the process described in paragraph (2)
through the sale and licensing of their standards.
(5) Congress and the executive branch have repeatedly
declared that, wherever possible, governments should rely on
voluntary consensus standards and have set forth policies and
procedures by which those standards are incorporated by
reference into laws and regulations and that balance the
interests of access with protection for copyright.
(6) Circular A-119 of the Office of Management and Budget
entitled ``Federal Participation in the Development and Use of
Voluntary Consensus Standards and in Conformity Assessment
Activities'', issued in revised form on January 27, 2016,
recognizes the benefits of voluntary consensus standards and
incorporation by reference, stating that ``[i]f a standard is
used and published in an agency document, your agency must
observe and protect the rights of the copyright holder and meet
any other similar obligations.''.
(7) Federal agencies have relied extensively on the
incorporation by reference system to leverage the value of
technical standards and voluntary consensus standards for the
benefit of the public, resulting in more than 23,000 sections
in the Code of Federal Regulations that incorporate by
reference technical and voluntary consensus standards.
(8) State and local governments have also recognized that
technical standards and voluntary consensus standards are
critical to protecting public health and safety, which has
resulted in many such governments--
(A) incorporating those standards by reference into
their laws and regulations; or
(B) entering into license agreements with standards
development organizations to use the standards created
by those organizations.
(9) Standards development organizations rely on copyright
protection to generate the revenues necessary to fund the
voluntary consensus process and to continue creating and
updating these important standards.
(10) The people of the United States have a strong interest
in--
(A) ensuring that standards development
organizations continue to utilize a voluntary consensus
process--
(i) in which all interested parties can
participate; and
(ii) that continues to create and update
standards in a timely manner to--
(I) account for technological
advances;
(II) address new threats to public
health and safety; and
(III) improve the usefulness of
those standards; and
(B) the provision of access that allows people to
read technical and voluntary consensus standards that
are incorporated by reference into laws and
regulations.
(11) As of the date of enactment of this Act, many
standards development organizations make their standards
available to the public free of charge online in a manner that
does not substantially disrupt the ability of those
organizations to earn revenue from the industries and
professionals that purchase copies and subscription-access to
those standards (such as through read-only access), which
ensures that the public may read the current, accurate version
of such a standard without significantly interfering with the
revenue model that has long supported those organizations and
their creation of, and investment in, new standards.
(12) Through this Act, and the amendments made by this Act,
Congress intends to balance the goals of furthering the
creation of standards and ensuring public access to standards
that are incorporated by reference into law or regulation.
SEC. 3. WORKS INCORPORATED BY REFERENCE INTO LAW.
(a) In General.--Chapter 1 of title 17, United States Code, is
amended by adding at the end the following:
``Sec. 123. Works incorporated by reference into law
``(a) Definitions.--In this section:
``(1) Circular a-119.--The term `Circular A-119' means
Circular A-119 of the Office of Management and Budget entitled
`Federal Participation in the Development and Use of Voluntary
Consensus Standards and in Conformity Assessment Activities',
issued in revised form on January 27, 2016.
``(2) Incorporated by reference.--
``(A) In general.--The term `incorporated by
reference' means, with respect to a standard, that the
text of a Federal, State, local, or municipal law or
regulation--
``(i) references all or part of the
standard; and
``(ii) does not copy the text of that
standard directly into that law or regulation.
``(B) Application.--The creation or publication of
a work that includes both the text of a law or
regulation and all or part of a standard that has been
incorporated by reference, as described in subparagraph
(A), shall not affect the status of the standard as
incorporated by reference under that subparagraph.
``(3) Standard.--The term `standard' means a standard or
code that is--
``(A) a technical standard, as that term is defined
in section 12(d) of the National Technology Transfer
and Advancement Act of 1995 (15 U.S.C. 272 note); or
``(B) a voluntary consensus standard, as that term
is used for the purposes of Circular A-119.
``(4) Standards development organization.--The term
`standards development organization' means a holder of a
copyright under this title that plans, develops, establishes,
or coordinates voluntary consensus standards using procedures
that incorporate the attributes of openness, balance of
interests, due process, an appeals process, and consensus in a
manner consistent with the requirements of Circular A-119.
``(5) Publicly accessible online.--
``(A) In general.--The term `publicly accessible
online', with respect to material, means that the
material is displayed for review in a readily
accessible manner on a public website that conforms
with the accessibility requirements of section 508 of
the Rehabilitation Act of 1973 (29 U.S.C. 794d),
including the regulations implementing that section as
set forth in part 1194 of title 36, Code of Federal
Regulations, or any successor regulation.
``(B) Rule of construction.--If a user is required
to create an account or agree to the terms of service
of a website or organization in order to access
material online, that requirement shall not be
construed to render the material not publicly
accessible online for the purposes of subparagraph (A),
if--
``(i) there is no monetary cost to the user
to access that material; and
``(ii) no personally identifiable
information collected pursuant to such a
requirement is used without the affirmative and
express consent of the user.
``(b) Standards Incorporated by Reference Into Law or Regulation.--
A standard to which copyright protection subsists under section 102(a)
at the time of its fixation shall retain such protection,
notwithstanding that the standard is incorporated by reference, if the
applicable standards development organization, within a reasonable
period of time after obtaining actual or constructive notice that the
standard has been incorporated by reference, makes all portions of the
standard so incorporated publicly accessible online at no monetary cost
and in a format that includes a searchable table of contents and index,
or equivalent aids to facilitate the location of specific content.
``(c) Burden of Proof.--In any proceeding in which a party asserts
that a standards development organization has failed to comply with the
requirements under subsection (b) for retaining copyright protection
with respect to a standard, the burden of proof shall be on the party
making that assertion to prove that the standards development
organization has failed to comply with those requirements.''.
(b) PRO Codes Act Reporting Requirement.--
(1) In general.--The United States Copyright Office is
required to prepare and submit a comprehensive report to the
House Judiciary Committee, which shall include--
(A) a detailed assessment of this Act's effect on
case law;
(B) an analysis of this Act's effectiveness in
achieving its stated goals;
(C) a review of any challenges or obstacles
encountered during the implementation process;
(D) recommendations for legislative or regulatory
modifications to improve the effectiveness of this Act;
and
(E) an overview of the impact of this Act on the
public, including access to legal information and
compliance costs for governments, businesses, and
individuals.
(2) Timeline for submission.--
(A) The initial report must be submitted within two
years of the enactment of this Act.
(B) Subsequent reports shall be submitted every
five years on the anniversary of the first report's
submission.
(c) GAO Study on Disadvantaged Communities.--
(1) Study directed.--The Comptroller General of the United
States shall conduct a study on the potential disparate impact
of this Act on historically disadvantaged communities.
(2) Elements of the study.--The study shall include, but
not be limited to:
(A) An analysis of how limited access to technical
standards incorporated in the PRO Codes Act could
disproportionately hinder the ability of historically
disadvantaged communities to assert their legal rights
and advocate for legal reforms.
(B) An assessment of how the potential costs
associated with accessing standards could create
additional barriers for residents of historically
disadvantaged communities seeking to understand and
enforce their rights.
(C) An examination of potential disparities in
outcomes for historically disadvantaged communities
arising from the implementation of the PRO Codes Act.
(D) Recommendations on ways to mitigate any
identified disparate impacts on historically
disadvantaged communities.
(3) Report.--The Comptroller General shall submit a report
to Congress within two years of the enactment of this Act,
detailing the findings of the GAO Study on the impact of PRO
Codes on historically disadvantaged communities from paragraphs
(1) and (2).
(d) Study of Costs for States, Cities, Municipalities, Counties,
Special Districts, Associated With Standards Incorporated by Reference
(SIBR).--
(1) Requirement for cost analysis.--The Comptroller General
of the United States shall conduct a comprehensive study of the
costs associated with the implementation of this Act. This
study will encompass levels of government, including state,
cities, municipalities, counties, and special district
governments, to ensure a complete understanding of the
potential financial impact.
(2) Scope of analysis.--The analysis shall include, but not
be limited to:
(A) Fees charged by Standard Development
Organizations to state, cities, municipalities,
counties, and special district governments for access
to standards incorporated by reference.
(B) An analysis of indirect costs to state, cities,
municipalities, counties, and special district
governments associated with compliance with this Act.
(3) Reporting.--The Comptroller General shall submit a
report to Congress within two years of the enactment of this
Act, detailing the findings of the cost analysis required under
paragraph (2). The report shall include recommendations on
potential actions to improve cost-effectiveness related to
SIBRs.
(e) U.S. Government Accountability Office (GAO) Study on
Consumers.--
(1) In general.--The Comptroller General of the United
States shall conduct a study on the potential impact of this
Act on consumers.
(2) Elements of the study.--
(A) Implications for consumer protection under this
Act.
(B) Potential for increased costs or confusion
among consumers due to new regulations.
(C) Accessibility of information about rights and
protections for consumers under this Act.
(D) Recommendations to enhance consumer protection
and information accessibility.
(3) Report.--The Comptroller General shall submit a report
to Congress within one year of the enactment of this Act,
detailing the findings of the GAO Study on the impact of this
Act on consumers.
(f) U.S. Government Accountability Office (GAO) Study on Digital
Privacy and Data Protection.--
(1) In general.--The Comptroller General of the United
States shall conduct a study on the potential impact of this
Act on digital privacy and data protection.
(2) Elements of the study.--
(A) Analysis of how this Act affects the protection
of personal data.
(B) Evaluation of the Act's compliance requirements
related to data security.
(C) Recommendations for strengthening digital
privacy protections.
(3) Report.--The Comptroller General shall submit a report
to Congress within 18 months of the enactment of this Act,
detailing the findings of the GAO Study on the impact of this
Act on digital privacy and data protection.
(g) U.S. Government Accountability Office (GAO) Study on Access to
the Law.--
(1) In general.--The Comptroller General of the United
States shall conduct a study on the impact of this Act
specifically on platforms that offer legal codes online at no
cost to the public. The study will assess how the Act
influences these platforms' operations and the public's access
to and understanding of the law.
(2) Elements of the study.--
(A) Assessment of how this Act influences the
operations of online platforms that provide public
access to legal codes and other regulatory documents.
(B) Evaluation of the Act's provisions that may
limit or enhance public accessibility to legal
information via these platforms.
(C) Analysis of potential barriers introduced by
the Act that could hinder public understanding of legal
standards and codes.
(D) Recommendations for amendments or new
provisions to ensure continued and enhanced public
access to legal codes and standards, fostering
transparency and legal literacy.
(3) Report.--The Comptroller General shall submit a report
to Congress within two years of the enactment of this Act,
detailing the findings of the GAO Study.
(h) U.S. Government Accountability Office (GAO) Study on Inclusive
of Accessibility and Usability Standards for People With
Disabilities.--
(1) In general.--The Comptroller General of the United
States shall conduct a study on the impact of this Act on
disabled populations, specifically assessing whether the Act's
definition of ``publicly accessible'' is sufficiently inclusive
of accessibility and usability standards for people with
disabilities.
(2) Elements of the study.--
(A) Evaluation of how the accessibility provisions
of this Act impact the ability of people with
disabilities to access and use public codes and
standards.
(B) Examination of current gaps in accessibility
that may prevent full participation of disabled
individuals in public and legal affairs as affected by
the Act.
(C) Recommendations to ensure this Act aligns with
federal accessibility standards and effectively serves
the needs of the disabled community.
(3) Report.--The Comptroller General shall submit a report
to Congress within 18 months of the enactment of this Act,
detailing the findings of the GAO Study on the accessibility of
this Act for disabled populations.
(i) U.S. Government Accountability Office (GAO) Study on Affordable
Housing.--
(1) In general.--The Comptroller General of the United
States shall conduct a study on the potential impact of this
Act on the development and accessibility of affordable housing.
(2) Elements of the study.--
(A) Analysis of this Act's impact on the costs and
regulatory barriers to building affordable housing.
(B) Evaluation of the Act's impact on the
availability of affordable housing units in urban and
rural areas.
(C) Assessment of the Act's cost on affordable
housing projects.
(3) Report.--The Comptroller General shall submit a report
to Congress within two years of the enactment of this Act,
detailing the findings of the GAO Study on the impact of this
Act on affordable housing.
(j) U.S. Government Accountability Office (GAO) Study on SDO Access
Conditions.--
(1) In general.--The Comptroller General of the United
States shall conduct a study on whether Standards Development
Organizations (SDOs) condition access to standards under this
Act by requiring users to create accounts, agree to restrictive
terms of service, or meet other potentially burdensome
conditions.
(2) Elements of the study.--
(A) Assessment of the extent to which SDOs impose
conditions that could restrict public access to
standards and legal codes, such as account creation,
agreement to terms of service, or other barriers.
(B) Evaluation of the impact of these conditions on
the public's ability to freely access, distribute,
share, and print essential legal information.
(C) Analysis of potential violations of the
fundamental principle that laws should be accessible
without undue restrictions, considering the
implications for transparency and accountability.
(D) Recommendations for legislative or regulatory
measures to ensure that access to legal information
under this Act is not conditioned on undue or
discriminatory terms.
(3) Report.--The Comptroller General shall submit a report
to Congress within 18 months of the enactment of this Act,
detailing the findings of the GAO Study.
(k) U.S. Government Accountability Office (GAO) Study on Executive
Compensation at SDOs.--
(1) In general.--The Comptroller General of the United
States shall conduct a study on executive compensation within
Standards Development Organizations (SDOs), particularly those
with substantial revenue streams and tax-exempt status.
(2) Elements of the study.--
(A) Analysis of the revenue sources of large SDOs,
including details on income from sales of publications,
fees for training and certification services, and
membership dues.
(B) Examination of the scale of executive
compensation at these organizations, including total
executive compensation as a proportion of total
revenues and in comparison to industry standards.
(C) Evaluation of the governance practices related
to executive compensation at SDOs, including
transparency, accountability, and alignment with
nonprofit organization standards.
(D) Recommendations for potential regulatory or
legislative actions to ensure that executive
compensation at tax-exempt SDOs remains within
reasonable limits and aligns with best practices for
nonprofit management.
(3) Submission.--The Comptroller General shall submit this
report to Congress within 18 months of the enactment of this
Act, detailing the findings of the GAO.
(l) U.S. Government Accountability Office (GAO) Study on This Act
and Homeowner Costs for Building Code Access.--
(1) In general.--The Comptroller General of the United
States shall conduct a study on how this Act would affect the
costs imposed on homeowners' access to building codes.
(2) Elements of the study.--
(A) Examination of the financial impact on
homeowners, particularly focusing on how these costs
might deter necessary maintenance, safety upgrades, and
other costs associated with renovations.
(B) Evaluation of how this Act would affect the
availability and affordability of building codes across
different regions and income groups.
(C) Recommendations for improving this Act to make
building codes more accessible and affordable for
homeowners.
(3) Report.--The Comptroller General shall submit a report
to Congress within 18 months of the enactment of this Act.
(m) U.S. Government Accountability Office (GAO) on Small
Businesses.--
(1) In general.--The Comptroller General of the United
States shall conduct a study on the potential impact of this
Act on small businesses.
(2) Elements of the study.--
(A) The extent to which compliance burdens are
affected by this Act.
(B) Analysis of small businesses' ability to
compete with larger entities under the new regulatory
framework.
(C) Availability and effectiveness of legal
resources for small businesses navigating this Act.
(D) Recommendations to mitigate any identified
negative impacts on small businesses.
(3) Report.--The Comptroller General shall submit a report
to Congress within one year of the enactment of this Act,
detailing the findings of the GAO Study on the impact of this
Act on small businesses.
(n) U.S. Government Accountability Office (GAO) Study on First
Amendment Rights.--
(1) In general.--The Comptroller General of the United
States shall conduct a study on the potential impact of this
Act on First Amendment rights, specifically the public's
ability to access, read, share, and debate the law, including
codes incorporated by reference.
(2) Elements of the study.--
(A) Analysis of how this Act may lead standard
development organizations to place the law behind
paywalls, thus restricting public access to essential
legal information and potentially violating First
Amendment rights.
(B) Evaluation of the economic, legal, and social
impacts of restricting public access to codes and
standards referenced in the Act.
(C) Examination of precedents and legal
interpretations regarding public access to laws and how
they align with First Amendment protections.
(D) Recommendations for legislative or regulatory
changes to ensure that all laws and standards
referenced in the Act are accessible without undue
financial or procedural barriers.
(3) Report.--The Comptroller General shall submit a report
to Congress within one year of the enactment of this Act,
detailing the findings of the GAO Study on the impact of this
Act on First Amendment rights.
(o) Technical and Conforming Amendment.--The table of sections for
chapter 1 of title 17, United States Code, is amended by adding at the
end the following:
``123. Works incorporated by reference into law.''.
SEC. 4. STUDY OF STANDARDS COST TO GOVERNMENTS.
(a) In General.--The Comptroller General of the United States shall
conduct a study on the financial impact to federal, state, and local
governments in the United States associated with acquiring access to
standards incorporated by reference into law.
(b) Scope.--The study under subsection (a) shall--
(1) Analyze the total expenditure by government entities
for accessing these standards;
(2) Assess any financial burdens or resource constraints
these costs impose on governments, particularly for smaller
municipalities;
(3) Evaluate the cost-effectiveness of current mechanisms
for acquiring these standards; and
(4) Examine the impacts on public services due to the costs
associated with accessing these standards.
(c) Report.--Not later than 2 years after the date of the enactment
of this Act, the Comptroller General shall submit a report to Congress
that includes--
(1) The findings of the study conducted under subsection
(a); and
(2) Recommendations to mitigate any adverse financial
impacts identified by the study, including suggestions for
legislative or administrative actions as appropriate.
Union Calendar No. 501
118th CONGRESS
2d Session
H. R. 1631
[Report No. 118-601]
_______________________________________________________________________
A BILL
To amend title 17, United States Code, to reaffirm the importance of,
and include requirements for, works incorporated by reference into law,
and for other purposes.
_______________________________________________________________________
July 22, 2024
Reported with an amendment, committed to the Committee of the Whole
House on the State of the Union, and ordered to be printed