Key Takeaways
- •Rep. Issa (R, CA-48) announced plans to advance an amended Pro Codes Act to preserve copyright for standards development organizations while ensuring free public access to laws.
- •James Pauley (President and CEO, National Fire Protection Association) said copyright revenue is essential for safety, while John Delli Venneri (General Counsel, American Society of Mechanical Engineers) opposed the bill.
- •Rep. Issa (R, CA-48) questioned Jonathan Band (Attorney, Library Copyright Alliance) on whether commercial entities should be allowed to monetize copyrighted standards under the guise of public access.
- •Rep. Lofgren (D, CA-18) argued that access to law is a due process right, while Republicans emphasized protecting the private-sector funding model that develops safety standards.
- •The subcommittee will proceed to a markup of the Pro Codes Act to resolve legal uncertainty created by conflicting court rulings regarding the government edicts doctrine and fair use.
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Hearing Analysis
Overview
This hearing examined the tension between the copyright protections afforded to standards-developing organizations (SDOs) and the public's right to access laws that incorporate those standards by reference. At the center of the discussion was H.R. 4072, the Pro Codes Act, a bipartisan legislative effort to ensure that technical codes—such as building, fire, and electrical standards—remain protected by copyright even after being adopted into law, provided they are made available for free public viewing online. The subcommittee sought to balance the need for privately funded, high-quality safety standards with the constitutional principle that "no one owns the law."
Key Testimony & Policy
The primary legislative focus was H.R. 4072, the Pro Codes Act. James Pauley, President and CEO of the National Fire Protection Association (NFPA), testified that the current self-funded SDO model is responsible for significant declines in fire-related deaths and incidents. He noted that 70% of NFPA’s revenue comes from selling and licensing codes, such as the National Electrical Code. Pauley argued that if copyright is stripped once a code is incorporated by reference (IBR), the funding for independent, consensus-based safety research would vanish, forcing the government to either fund the process with taxpayer dollars or allow industry players to write their own regulations.
Keith Kupferschmid, President and CEO of the Copyright Alliance, emphasized that recent court decisions have created a "chaotic" legal landscape. He argued that the Pro Codes Act provides a necessary compromise by requiring SDOs to provide "read-only" access to IBR standards online while preserving their ability to sell searchable, downloadable, or physical versions to professionals. Conversely, John Delli Venneri, General Counsel at the American Society of Mechanical Engineers (ASME), opposed the bill, characterizing it as a "one-size-fits-all" mandate. He expressed concern that the bill would force the publication of highly technical engineering and nuclear standards, potentially aiding geopolitical rivals and undermining national security.
Jonathan Band, representing the Library Copyright Alliance (LCA), argued that the bill is unconstitutional under the "government edicts doctrine," which posits that the law must be in the public domain. Band suggested that the "read-only" requirement is insufficient for true public access and proposed that government agencies should instead directly incorporate standards into their codes or negotiate royalty-free licenses. He also cited court cases, such as *ASTM v. PublicResource.org*, to argue that the non-commercial posting of IBR standards constitutes "fair use" and does not demonstrably harm the SDOs' market.
Notable Exchanges & Partisan Dynamics
Chairman Darrell Issa (R, CA-48) engaged in a pointed exchange with Jonathan Band regarding the definition of "fair use." Chairman Issa compared the unauthorized posting of codes to Napster, arguing that commercial entities like UpCodes are monetizing copyrighted material under the guise of public access. Band countered that the distinction lies in the fact that these codes have become "the law," which carries a different constitutional weight than music or entertainment.
Rep. Deborah Ross (D, NC-2), a co-author of the bill, framed the issue as a Fifth Amendment "takings" matter, suggesting that when the government adopts a private standard, it is essentially taking private property for public use and should respect the creator's right to compensation. She also drew parallels to current debates over Artificial Intelligence, noting that companies like Anthropic PBC should not be allowed to use copyrighted works for profit without permission.
Rep. Zoe Lofgren (D, CA-18) challenged the SDOs' claims of financial ruin, pointing out that organizations like the International Code Council (ICC) and NFPA have maintained revenues exceeding $100 million even after losing key court battles. She emphasized that for low-income communities and the NAACP, access to technical standards is a matter of "access to justice" against well-resourced adversaries like landlords.
Organizations Mentioned
* PublicResource.org (PRO): A nonprofit organization that has litigated extensively for the right to post IBR standards online, arguing they are public domain. * National Fire Protection Association (NFPA): A major SDO that supports the Pro Codes Act to protect its funding model for fire and life safety standards. * American Society of Mechanical Engineers (ASME): An SDO that opposes the bill, arguing it picks "winners and losers" and risks national security by forcing technical data online. * Copyright Alliance: An advocacy group representing creators that supports the bill as a way to provide legal certainty and protect the broader copyright ecosystem. * UpCodes: A commercial company mentioned as an example of an entity that monetizes standards developed by SDOs, which Chairman Issa criticized as a violation of copyright. * Library Copyright Alliance (LCA): An organization representing librarians that opposes the bill on the grounds that it restricts public access to the law and is unconstitutional. * American National Standards Institute (ANSI): Mentioned as the body that accredits the open, consensus-based process used by SDOs to develop standards. * International Code Council (ICC): Cited regarding its financial health and its role in developing building codes used across the United States.
What's Next
Chairman Issa announced that the subcommittee intends to move forward with a markup of H.R. 4072. He indicated that an "amendment in the form of a substitute" is being prepared to incorporate feedback from the hearing, particularly regarding the distinction between the "law" portion of a code and supplemental "how-to" or educational material. The Chairman expressed confidence that the bill would eventually pass the House floor with the necessary two-thirds majority under suspension of the rules. Witnesses were given five legislative days to submit additional materials or answer follow-up questions for the record.
Transcript
They hid the gavel. The subcommittee will come to order. Without objection, the chair is authorized to declare a recess at any time. We welcome everyone here today for a hearing on codes and standards development and public access. Without objection, Mr. Kiley, when he arrives, will be able to participate in today's hearing for the purpose of questioning the witnesses and will receive five minutes for that purpose. I now recognize myself for an opening statement. Earlier in the back, I welcomed everyone to Groundhog Day because it is seldom that we have a bill that wins overwhelmingly on the House floor by nearly two-thirds, having had full hearings and markups, having some of what you see on the screen, the 8,000 plus entities that help create what we often call the building codes, but in fact, these how-to manuals, which do include are included by reference in many laws, but ultimately are far more than simply statements of fact for the law. It was with some surprise that we found that we narrowly lost a suspension vote. We expect to come back again shortly. For that purpose, today's hearing will, in fact, try to cover some new information if we possibly can, and particularly a new approach to explaining how we got here. James Madison, in fact, argued the need to grant limited terms of exclusive rights to inventors and authors, as he said in the Federalist 43. Ultimately, his argument became Article 1, Section 8, Clause 8 of our Constitution. Let me be very clear. It does not bestow a right. There is no absolute right to copyright. There is no absolute right to patent. Those are creations, as our Constitution says, to promote progress of science and useful arts by securing for limited time to authors and inventors that exclusive right to their respective writings and discoveries. And I think that is so important today because the bill that is being considered and will be back on the floor is a balance. How do we continue to have the promotion that causes over 8,000 entities to work, in many cases completely as volunteers, to produce some of these great, and of course I'm using old books because most of it's online today, but the building codes, but more than the codes, building the how-to manuals, the what is right, what are the cautions, what should you know. These are educational books broadly. Many say because they are included by reference by cities and others that somehow that diminishes their legitimate copyright. For purposes of this bill, we have sought to find a middle ground. We have sought to say because you must comply with the law and because municipalities and states often simply refer to a copyrighted material, that making that available for purposes of knowing what the law is referring to is reasonable. Just as a copy in the library is free to read, the bill that we propose makes it possible for you to in fact find out what that reference is. But it stops short of allowing you to simply make a Xerox copy and include it with your application. It stops short of saying that all the information that helps you produce a better, safer product, to know the risk involved if you choose to do something one way versus another, and so on, is in fact still protected. That balance is not easy, but it is a balance that our founders gave us. They gave us a responsibility to make this a promotion, to make it for a limited period of time, but in fact to make it ultimately available to the public. That's what we're doing here in this legislation, but it's also a reflection. I serve on the Science Committee. Scientific works have had many of the same sort of comments, that they're somehow fact, not something that is a work. You're just stating what is science. So when somebody discovers the genome, maps it, it was argued that shouldn't be patented. That argument fell short because although we all have those genes in us, finding a way to map them, finding a way to create a useful work in science that has led to amazing development had to be promoted, and we are having the same situation here today. We have people today that will be testifying who disagree, who believe that in fact everything should be free and that have a fairly diminished view of what a copyright is. They're entitled to that. We also have panelists that agree with the basic language of the bill, and we have panelists, some of them are from those 8,000 names you see scrolling here, who want more. They want an outright rejection of any use in the public domain. They don't want it available. And others, quite frankly, will argue that their association members are different, that they don't promote even though they get included. Let me be clear, having looked at that extensively, the taking by a city or a state or even the federal government and including it in a statutory requirement that you comply with would have the exact same effect, an effect that says the public has a right to see the law. Mr. Massie will be here later, and I side with him and others on the dais in saying if it becomes the law, you should be able to find it, see it at no cost. How that is facilitated is open to debate, but not whether or not you should. So for that reason, I find it, and I'm not trying to be argumentative here, that comes later, I'm trying to make the point that it's moot whether you promote it to be in the law or it ends up in the law. Ultimately, we believe on this side of the dais that the American people have a right to see their laws. It doesn't mean they have a right to take it all, to use it, to resell it, to monetize it. That's short of what is you have with a law. And for that reason, we have the grand compromise of H.R. 4072, the Pro Codes Act. We want to preserve copyright for a reason. If I were to stack up every book, many of them thicker than this one, that is produced by these 8,000 companies, we would have this dais filled. When you look at those books, and I'll ask some of the witnesses here today, when you look at those books carefully, you see some things that are clearly look like the law, but you also see an amazing amount of information, warnings, how-tos, things that in fact would be in any good manual. We are not in another country. In the U.S., we go in our own way. So I want to be clear, reference to other countries and how they do it really doesn't matter. And it doesn't matter because America is where we are because of our respect and balance for intellectual property. Lastly, and I'll close with this and recognize the ranking member. There are those who will argue that once something is fact and everyone knows it, it's not copyrightable. For those like me who love to cook, does that mean that when Betty Crocker tells you how to make cookies and she gives a set of ingredients and those are the same ingredients and sometimes the exact same measurements that other recipes have, that somehow the Betty Crocker book should not be copyrighted and anyone should be able to monetize it while it's still under copyright? I disagree with that, and that is the reason that it was so important to have a second hearing to make it clear that when this goes to the floor, this will be a statement by the U.S. Congress that we believe in those original principles of promoting while balancing these works of these authors. And with that, I recognize the ranking member for his opening statement.
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