Congress’ latest foray into copyright and administrative law, the Promoting Responsible and Open Codes Act (PRO Codes Act), has surfaced a longrunning tension in the world of standards development. On its face, the bill appears benign—ensuring that, when private standards are incorporated by reference into law, citizens can access them for free. But beneath this promise lies a more complex and potentially destabilizing reality. Indeed, the act risks turning copyright from a stable property right into a conditional license, revocable whenever the government adopts a private work.
Sponsoring U.S. Reps. Darrell Issa (R-Calif.) and Deborah Ross (D-N.C.) have framed the PRO Codes Act as a measure to “protect public access to federal rules,” while maintaining incentives for innovation. They cast the bill as a balanced fix: transparency without expropriation. Supporters like the Copyright Alliance and the International Code Council echo that narrative, portraying the measure as essential to sustain the “public-private partnership” model of technical regulation.
But closer inspection reveals that the PRO Codes Act would dramatically reengineer the economics of standards development. The bill’s simplicity—free posting or loss of copyright—obscures the diversity of the standards ecosystem and the subtle legal balance that already governs it.
Two Standards Models and One Misdiagnosis
The world of standards-development organizations (SDOs) can be divided into two broad models: the voluntary-adoption model and the lobbying-oriented model.
Voluntary-adoption SDOs—such as ASTM International, the American Society of Mechanical Engineers (ASME), and the Institute of Electrical and Electronics Engineers (IEEE)—do not rely on political advocacy for adoption of their standards. They convene volunteer engineers, academics, and government officials to produce consensus standards that are often incorporated by reference into regulations; that is, they are cited as external technical documents. Such standards retain their copyright status under, for example, the “reasonable availability” regime of OMB Circular A-119. Their economics are straightforward: the private sale of copyrighted standards funds the expensive process of consensus building and revision.
By contrast, lobbying-oriented SDOs like the International Code Council (ICC) and the National Fire Protection Association (NFPA) pursue wholesale statutory adoption as a primary part of their business model. They draft comprehensive model codes and then lobby legislatures and agencies to enact them verbatim. Once enacted, the SDO similarly sells access to the codes—often through paywalled “reading rooms” or premium subscriptions.
While both models are entitled to rely on copyright to protect their work, the latter tends to generate more tension with copyright doctrines like the “government edicts” doctrine. By encouraging full adoption of the text (as opposed to incorporation by reference), these lobbying-oriented SDOs create a more direct conflict with public accessibility of the law’s text. They are, of course, entitled to enforce their copyrights and run their businesses as they see fit, but this approach tends to generate more friction at the edges of copyright law.
This is because the difference between incorporation by reference and wholesale adoption is not merely procedural. When a standard is incorporated by reference, it remains a privately authored work—used by law, but not transformed into law. Wholesale adoption, however, fuses the text with the law itself, triggering the “public has a right to read the law” principle recognized in Veeck v. Southern Building Code Congress Int’l.
That doctrinal fault line between use and transformation defines why voluntary-adoption SDOs have fared relatively well in litigation, while lobbying SDOs have faced existential challenges. It also explains why the PRO Codes Act now threatens to upend both.
What the PRO Codes Act Actually Does
The PRO Codes Act mandates that, once a standard is incorporated into law by reference, the SDO must post the full text online for free or else lose copyright protection. In theory, this guarantees transparency. In practice, it redefines copyright as a privilege contingent on government behavior.
Under current law, voluntary SDOs already meet public-access obligations through “reasonable availability”—generally by offering limited reading rooms or online portals approved by the relevant agencies. Where those measures have been found insufficient, courts have modified how standards-relevant copyright law works by invoking the fair-use doctrine or, as noted above, the government-edicts doctrine.
The PRO Codes Act replaces this judicial equilibrium with a bright-line forfeiture rule. It treats incorporation by reference—the cornerstone of voluntary adoption—the same as wholesale enactment. A regulator’s decision to cite a standard could thus strip the authoring SDO of its principal asset.
The bill’s effect would be to impose compulsory licensing at zero price on organizations that never sought to have their works enacted into law in the first place. The PRO Code Act’s uneven impact stems from this conflation.
Who Gains and Who Loses
Lobbying-oriented SDOs would benefit from the PRO Codes Act, as the bill would have the effect of relegitimizing their business model. Cases like Veeck and Public.Resource.Org have already eroded some of these SDOs’ ability to invoke copyright once their model codes are enacted.
The PRO Codes Act purports to solve that problem by affirming that copyright survives enactment—provided the SDO posts a nominally “free” version online. But their existing “reading rooms,” which restrict printing and downloading, already satisfy that condition. If passed, the legislation would allow them to market premium versions and commentary under the umbrella of congressional imprimatur. In short, the law would transform litigation exposure into statutory certainty for the lobbying-oriented SDOs.
Voluntary-adoption SDOs, by contrast, stand to lose. They do not lobby for enactment and often have no control over when a government agency incorporates their standards by reference. Under the PRO Codes Act, statutory references that are beyond the SDO’s control would trigger the obligation to post the standard for free or face automatic loss of copyright. This would hold such SDOs’ entire funding model, built on publication revenue, hostage to third-party regulatory action.
For these organizations, the act would convert a manageable “reasonable availability” requirement into an unfunded mandate and a potential uncompensated taking.
A Miscalibrated Fix
The problem Congress purports to solve—public access to the law—is already being addressed by the courts. Federal agencies, meanwhile, ensure public availability of statutorily incorporated standards through OMB Circular A-119.
By contrast, the PRO Codes Act introduces a rigid statutory trigger that threatens to destabilize this carefully tuned equilibrium. It would codify the lobbying model while undermining the voluntary one, precisely the reverse of what sound policy requires.
The economic stakes extend beyond copyright law. Standards are a form of technical infrastructure—hidden scaffolding that supports everything from electrical wiring and aircraft safety to Wi-Fi protocols. Voluntary, consensus-based SDOs have given the United States a competitive edge in global standards setting. Undermining these SDOs’ revenue base risks ceding leadership to rivals that pursue state-driven industrial strategies—most notably China’s Standards 2035 initiative.
If the United States weakens private incentives to develop standards, government bodies would have to step in—requiring new appropriations and injecting politics into technical rulemaking. The result would be slower updates, reduced quality, and loss of international competitiveness.
A Better Path
The PRO Codes Act represents a stealth form of compulsory licensing. By tying property rights to government adoption, it would redefine copyright as a revocable privilege and blur the line between “using” a work in governance and expropriating it into the public domain.
Sometimes, the best legislative fix is restraint. Congress should allow the judiciary’s calibrated system to continue to evolve, rather than replace it with a one-size-fits-all mandate that mistakes a political-optics problem for a market failure.
