House Judiciary subcommittee hears experts on Pro Codes Act, split over access and SDO copyright

The House Judiciary subcommittee convened an expert panel to examine the Pro Codes Act (H.R. 4072), legislation intended to resolve whether privately developed technical standards retain copyright protection after being incorporated by reference into law.

Chairman Isa opened the hearing by framing the tension at the bill’s center: ‘‘If you can’t access the code, you don’t know what the law says,’’ he said, while also acknowledging that standards-development organizations (SDOs) rely on sales and licensing to fund the technical work that, he and proponents contended, keeps Americans safe.

Jim Paulie, president and CEO of the National Fire Protection Association, told the subcommittee that the NFPA’s work has correlated with substantial safety improvements: ‘‘54% — that’s how much fire incidents have declined in this country since 1980,’’ he said, adding that home fire deaths are down 44% in the same period. Paulie said the NFPA funds standards development primarily through sales and licensing and warned that without copyright protections the SDO funding model would collapse. ‘‘If you take away copyright protection, the funding disappears and with it the system that has made Americans safer for more than a century,’’ Paulie said, urging Congress to act.

Keith Cooper Schmidt, president and CEO of the Copyright Alliance, argued that inconsistent federal-court rulings on copyrightability and fair use have created uncertainty that only Congress can fix. He described the Pro Codes Act as ‘‘a pragmatic middle ground’’ that, in his view, could preserve incentives for standards’ creation while ensuring public access when a standard is incorporated by reference.

By contrast, John Deveri (later in his testimony self-identifying as John Delivanaryi), general counsel for the American Society of Mechanical Engineers, said the bill as drafted ‘‘picks winners and losers’’ and could harm highly technical standards used in national-security and defense-related manufacturing. ‘‘The Pro Codes Act fundamentally changes the law of copyright,’’ he testified, warning the bill would impose ‘‘forced publication’’ of privately created technical work and could undermine U.S. leadership in standards development.

Jonathan Band, representing the Library Copyright Alliance, maintained a different concern: the government-edicts doctrine requires public access to law, and Pro Codes’ proposed read-only public-access language would be insufficient. Band called the bill ‘‘unconstitutional’’ as drafted and proposed alternatives, including direct incorporation of standards by agencies or the use of royalty-free licensing to ensure full public access to the legal text.

Members pressed witnesses on several detailed points. Representative Fitzgerald asked how much standards development costs and whether NFPA’s model could survive without copyright-derived revenue; Paulie said licensing and sales make up about 70% of NFPA’s revenue and argued that funding is essential to preserve an independent, balanced standards process. Other members pressed on accessibility: several witnesses and members noted that a searchable, downloadable format is not the same as a read-only viewer and that limited read-only access can form an effective barrier for low-income tenants, small businesses, and other groups who must comply with technical legal requirements.

Witnesses also flagged specific risks tied to scope and implementation. ASME emphasized that some standards are technical enough to raise national-security concerns if posted openly; library advocates emphasized access-to-justice consequences for tenants and homeowners who need standards to understand enforcement. Several witnesses suggested legislative alternatives — including narrower definitions of what must be made public, agency-driven direct incorporation of legal text, or clearer guidance to courts about how fair use applies in IBR (incorporation-by-reference) contexts.

Chairman Isa closed by promising an amendment in the form of a substitute for the bill ahead of markup and invited additional written input from witnesses. The subcommittee agreed to follow-up questions for the record and adjourned without a vote on the legislation.

The committee record contains extended exchanges about court decisions (including references to Georgia v. Public.Resource.Org and recent fair-use guidance from higher courts), comparative testimony about revenue and costs for standards development, and multiple proposals for reconciling public-access obligations with the payment model that supports SDOs’ technical work. The subcommittee’s next procedural step is expected to be a markup in which sponsors will offer a substitute amendment based on the testimony and member input.