We should all have the freedom to read, share, and comment on the laws we must live by. But yesterday, the House Judiciary Committee voted 19-4 to move forward the PRO Codes Act (H.R. 1631), a bill that would limit those rights in a critical area. 

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Tell Congress To Reject The Pro Codes Act

A few well-resourced private organizations have made a business of charging money for access to building and safety codes, even when those codes have been incorporated into law. 

These organizations convene volunteers to develop model standards, encourage regulators to make those standards into mandatory laws, and then sell copies of those laws to the people (and city and state governments) that have to follow and enforce them.

They’ve claimed it’s their copyrighted material. But court after court has said that you can’t use copyright in this way—no one “owns” the law. The Pro Codes Act undermines that rule and the public interest, changing the law to state that the standards organizations that write these rules “shall retain” a copyright in it, as long as the rules are made “publicly accessible” online. 

That’s not nearly good enough. These organizations already have so-called online reading rooms that aren’t searchable, aren’t accessible to print-disabled people, and condition your ability to read mandated codes on agreeing to onerous terms of use, among many other problems. That’s why the Association of Research Libraries sent a letter to Congress last week (supported by EFF, disability rights groups, and many others) explaining how the Pro Codes Act would trade away our right to truly understand and educate our communities about the law for cramped public access to it. Congress must not let well-positioned industry associations abuse copyright to control how you access, use, and share the law. Now that this bill has passed committee, we urgently need your help—tell Congress to reject the Pro Codes Act.

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TELL CONGRESS: No one owns the law

It’s Open Access Week in the United States, which means it’s a chance to celebrate the accomplishments of the Open Access movement—and reinforce the need to keep fighting. We’ve come a long way, with governments, universities, and research funders all successfully pressuring publishers to improve access to knowledge and finding ways to do it themselves. 

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Tell Congress: Access To Laws Should Be Fully Open

At EFF, we are especially proud of the work we have done helping our client, Public.Resource.Org (PRO), improve public access to the law. Public Resource’s mission is to make all government information available to the governed. As part of that mission, it posts safety codes such as the National Electrical Code, on its website, for free, in a fully accessible format—where those codes have been adopted into law by reference.  

You didn’t learn about incorporation by reference from Schoolhouse Rock, but it’s one of the key ways policymakers create law. A huge portion of the regulations we all live by (such as fire safety codes, or the National Electrical Code) are initially written—by industry experts, government officials, and other volunteers—under the auspices of standards development organizations (SDOs). Federal, state, or municipal policymakers then review the codes and decide whether the standard is a good broad rule. If so, it is adopted into law “by reference.” In other words, the regulation cites the code by name but doesn’t copy and paste the entire thing into law (useful when the code is long and detailed). For example, if a regulation requires compliance with the National Fire Safety Code, it might simply refer to specific provisions or the code as a whole, rather than copying it in directly. But that doesn’t make compliance any less mandatory. 

When a pipeline bursts, journalists might want to investigate whether the pipeline complied with federal regulations, or compare federal, state, and local rules. When a toy is recalled, parents want to know whether its maker followed child safety rules. When a fire breaks out, homeowners and communities want to know whether the building complied with fire safety regulations. Online access to safety regulations helps make that review—and accountability—possible.  

The rub: the SDOs claim to own copyright in these rules, even after they become law, and that they are therefore allowed to sell and otherwise control access to them. Based on that claim, they sued Public Resource for copyright infringement. 

But court after court has recognized that no one can own the law.  The Supreme Court held as much in its very first copyright case, and recently reaffirmed it: if “every citizen is presumed to know the law,” the Court observed, “it needs no argument to show . . . that all should have free access to its contents.” And in September 2023, after a decade of litigation, a federal appeals court held that Public Resource’s database was a lawful fair use.  

Which brings us to the latest threat. Having lost in court, the SDOs are now looking to Congress to shore up their copyright claim, via the Pro Codes Act. It’s a tricky bit of legislation that seems innocuous if you don’t know the context. 

Pro Codes’ main provision requires that: 

An original work of authorship otherwise subject to protection under this title that has been adopted or incorporated by reference, in full or in part, into any Federal, State, or municipal law or regulation, shall retain such protection only if the owner of the copyright makes the work available at no monetary cost for viewing by the public in electronic form on a publicly accessible website in a location on the website that is readily accessible to the public.

Sounds good, right? In fact, it sounds obvious: mandatory regulations should be made available online, for free, so people can more easily know, share, and comment on them. Here’s the trick: this language would effectively endorse the claim that SDOs can “retain” copyright in the law, as long as they let the public read it online.  

There are many problems with this approach. First and foremost, “access” here means read-only, and subject to licensing limits.  We already know what that looks like: currently the SDOs that make their codes available to the public online do so through clunky, disorganized, siloed websites, largely inaccessible to the print-disabled, and subject to onerous contractual terms (like a requirement to give up your personal information). The public can’t copy, print, or even link to specific portions of the codes. In other words, you can look at the law (as long as you aren’t print-disabled and you know what to look for), but you can’t share it, compare it, or comment on it. As multiple amici who filed briefs in support of Public Resource explained, the public needs more.  

Second, it doesn’t really make sense. The many volunteers who develop these codes neither need nor want a copyright incentive. The SDOs don’t need it either—they don’t do anything creative (convening volunteers is important work, but not creative work), and they make plenty of profit though trainings, membership fees, and selling standards that haven’t been incorporated into law.  

Third, it’s unconstitutional under the First, Fifth, and Fourteenth Amendments, which guarantee the public’s right to read, share, and discuss the law.  

Finally, there is no need for this bill. It simply mandates that SDOs do badly what Public Resource is already doing, better, for free.  

The Pro Codes Act is a deceptive power grab that will help giant industry associations ration access to huge swaths of U.S. law. Tell Congress not to fall for it. 

 EFF is proud to celebrate Open Access Week. 

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Tell Congress: Access To Laws Should Be Fully Open