The reintroduction of the Protecting and Enhancing Public Access to Codes (Pro Codes) Act has ignited a contentious debate over the intersection of copyright law and public access to legal standards. This bipartisan legislation, spearheaded by Senators Chris Coons (D-Del.) and John Cornyn (R-Texas), aims to allow standards development organizations (SDOs) to retain copyright over their codes even after these codes are incorporated into law, provided they are made freely accessible online.
Proponents argue that this measure safeguards the intellectual property rights of SDOs, which invest significant resources in developing technical standards that enhance public safety. Senator Coons emphasized that such standards, crafted by experts, are vital for protecting communities from hazards like electrical and fire risks. He stated, “When those standards are excellent, they should become universal, but that shouldn’t mean a penalty for the non-profit organizations that developed them and stand to lose their intellectual property.” ([coons.senate.gov](https://www.coons.senate.gov/news/press-releases/senators-coons-cornyn-colleagues-introduce-pro-codes-act-to-protect-and-improve-access-to-safety-standards/?utm_source=openai))
However, critics contend that the Pro Codes Act poses serious constitutional concerns by potentially privatizing the law. The Re:Create Coalition, a group advocating for balanced copyright policies, argues that the public has an inherent right to access and reuse the law without copyright restrictions. They assert that the Act could restrict public and first responders’ access to critical safety standards, obstruct commentary, criticism, and scholarship on the law, and hinder innovation and economic growth. ([recreatecoalition.org](https://recreatecoalition.org/press_release/recreate-statement-on-the-senate-re-introduction-of-the-pro-codes-act/?utm_source=openai))
Legal experts have also weighed in, highlighting potential conflicts with established constitutional principles. The U.S. Supreme Court has previously affirmed that “no one can own the law,” underscoring that laws and regulations, once enacted, belong in the public domain. The Pro Codes Act appears to challenge this doctrine by allowing private entities to maintain copyright over standards that have been codified into law. ([forbes.com](https://www.forbes.com/sites/andrewleahey/2024/07/26/a-threat-to-justice-the-pro-codes-act-would-copyright-the-law/?utm_source=openai))
Furthermore, recent federal court decisions have reinforced the notion that incorporated standards should be freely accessible. In cases such as ASTM v. Public.Resource.Org and ASTM v. UpCodes, courts have found that posting incorporated standards online likely constitutes fair use, thereby supporting the argument for public access. ([legis1.com](https://legis1.com/news/private-code-ownership-laws-congress-debates-who?utm_source=openai))
The debate over the Pro Codes Act underscores a fundamental tension between protecting the intellectual property rights of organizations that develop safety standards and ensuring that the public has unfettered access to the laws that govern them. As Congress continues to deliberate on this legislation, stakeholders from various sectors will be closely monitoring its implications for transparency, public safety, and constitutional rights.