Understanding the Pro Codes Act
The Pro Codes Act (H.R. 4072, S. 4145) is proposed legislation that seeks to let organizations retain copyright in codes even after they are adopted into law. This bill has faced large opposition from public interest groups for the perceived potential to create a monopoly on the law itself and make compliance harder.
Why This Matters
Historically, courts have held that laws and regulations, once enacted, belong in the public domain. In Georgia v. Public.Resource.Org., the U.S. Supreme Court affirmed that "no one can own the law". However, the Pro Codes Act attempts to challenge this principle.
Andrew Leahey, writing for Forbes, emphasizes that the Pro Codes Act could create significant barriers to accessing the law. He notes that "the concept of any individual or entity 'owning the law' is antithetical to democratic principles as it necessarily makes laws more difficult to access". This could lead to a scenario where individuals and organizations with greater resources have easier access to legal information, undermining fairness and equity.
The Implications
According to the above article, the possible implications of the Pro Codes Act, If passed, are:
- restricted online access to building codes
- increased costs for professionals and the public seeking to understand legal requirements
- hindered ability to adapt legal materials into accessible formats for individuals with disabilities, as copyright restrictions may prevent modifications necessary for accessibility
Broad Coalition Oppose the Pro Codes Act
Many public interest groups oppose the bill, including:
- American Library Association (ALA)
- Association of Research Libraries (ARL)
- American Federation of State, County and Municipal Employees (AFSCME)
- Electronic Frontier Foundation (EFF)
- Reporters Committee for Freedom of the Press
- Wikimedia Foundation
- and many others
“Continuing to retain copyright not only increases costs for those who must comply with new standards incorporated into law, but also creates incentives to expand the regulatory burden”, said Senior Resident Fellow of Technology and Innovation for R Street Institute, Wayne T. Brough. “Whether a criminal statute or the specific requirements for complying with a fire code, if it is enforced with legal penalties, it belongs in the public domain”.
“The Pro Codes Act is a deceptive power grab that will help giant industry associations ration access to huge swaths of U.S. law,” said the legal director of the Electronic Frontier Foundation, Corynne McSherry, “it’s unconstitutional under the First, Fifth, and Fourteenth Amendments, which guarantee the public’s right to read, share, and discuss the law”.
Current Status
Thanks to widespread public opposition and advocacy, the Pro Codes Act failed to pass when voted on in the House in 2024. However, it has been recently re-introduced to the 119th Congress and is currently in committee in both the House and Senate.
Frequently Asked Questions (FAQ)
The primary concern is that it aims to allow private organizations to hold copyrights over codes that have been incorporated into law, restricting free public access and use of legal requirements.
Courts have consistently ruled that laws and regulations, once enacted, are in the public domain. Notably, the U.S. Supreme Court in Georgia v. Public.Resource.Org Inc. stated that "no one can own the law."
A broad coalition, including the American Library Association, Electronic Frontier Foundation, Wikimedia Foundation, and others, oppose the Act due to its potential to limit public access to the law. (Opposition Letter to S. 835)
The Act could hinder the ability to adapt legal materials into accessible formats, such as those needed by individuals with visual impairments. Copyright restrictions may prevent necessary modifications, effectively denying equal access to legal information. (Forbes)
The bill specifies that organizations that are given copyright must provide a free online version to the public. However, some building code publishers have gated the law within “reading rooms” that are difficult to navigate and ultimately force the public to pay for proper access.
The Electronic Frontier Foundation noted that for one law publisher, "The texts are not searchable, cannot be printed, downloaded, highlighted, or bookmarked for later viewing, and cannot be magnified without becoming blurry. Cross-referencing and comparison is virtually impossible. Often, a reader can view only a portion of each page at a time and, upon zooming in, must scroll from right to left to read a single line of text."
Publishers often argue that they need to restrict access to the law through paywalls and physical codebooks to continue operating. However, this couldn’t be further from the truth.
For some publishers, most of their revenue comes from services other than selling the codes. According to the ICC’s tax filings, 88% of its revenue comes from program services, including consulting, certification, and training.
Stay informed about legislative developments, support organizations advocating for free unfettered laws, and share information about the importance of public access to legal standards. Write to your elected representatives to inform them of your position against the Pro Codes Act.