Copyright in Standards Incorporated by Reference into Law and the Pro Codes Act

Copyright in Standards Incorporated by Reference into Law and the Pro Codes Act

Copyright in Standards Incorporated by
September 26, 2023
Reference into Law and the Pro Codes Act
Kevin J. Hickey
This report explains the current law and litigation concerning copyright protection for technical
Legislative Attorney
standards developed by private organizations and subsequently incorporated by reference into

federal, state, or local law.

Technical standards—such as fire safety and building codes—play an important role in
protecting public health and safety, as well as ensuring compatibility and interoperability in particular industries. Current
federal policy generally requires federal agencies to use privately developed, voluntary consensus standards, instead of
“government-unique” standards. Private standards-developing organizations (SDOs) often develop these standards by
bringing together experts and stakeholders in particular areas and reaching consensus on effective technical solutions. SDOs
may fund their activities by publishing and selling copies of their standards (e.g., an electrical code handbook) to people who
use those standards (e.g., a property developer).
Privately developed standards are used by federal, state, and local governments in various ways. In particular, governments
may incorporate such standards into law or regulation by reference. For example, a state or locality may adopt a privately
developed electrical code, making that standard a legal requirement for the electrical design of a building in that jurisdiction.
Other incorporated-by-reference (IBR) standards may serve as a reference or as guidance, but do not formally impose legal
obligations.
Copyright grants the author of a creative work the exclusive right to copy and sell their work, among other things. As an
original work of authorship, standards are generally entitled to copyright protection if they are created by a private entity.
Copyright protection, when applicable, allows SDOs to prevent third parties from making and distributing unauthorized
copies of their standards. SDOs may thus rely on copyright to fund their standards-development activities.
When technical standards are incorporated into law, maintaining copyright protection on them can raise constitutional and
other concerns about public access to the law. Under federal law, standards incorporated by reference into federal regulations
must be made reasonably available to interested parties. State and local governments also often rely on IBR standards, and
may have differing policies for public access. Many SDOs choose to make their standards available in some form online.
Some public-access and government-transparency organizations have disregarded SDOs’ copyright assertions and posted
technical standards for free download online. These groups argue that IBR standards lose copyright protection once they are
incorporated into law, or that their activities are a permitted fair use of SDOs’ copyrighted material. Several copyright
disputes between SDOs and public-access organizations have led to protracted litigation in multiple forums.
Despite decades of decisions, courts have not reached consensus on whether technical standards remain protected by
copyright after they are incorporated into law. Various U.S. Courts of Appeals for different regional circuits reached
seemingly conflicting conclusions on that question in the 1980s–2000s. Following a 2018 decision by the D.C. Circuit in
American Society for Testing and Materials v. Public.Resource.Org (ASTM v. PRO I), the case law has increasingly focused
on whether copyright’s fair use doctrine permits public-access groups to make IBR standards available online. Following
ASTM v. PRO I and the Supreme Court’s 2020 decision on a related issue in Georgia v. Public.Resource.Org, recent cases
have typically ruled against SDOs’ copyright infringement claims, mainly on fair use grounds.
A bill introduced in the 118th Congress, the Pro Codes Act (H.R. 1631 and S. 835), seeks to address this issue legislatively.
The Pro Codes Act would explicitly provide that otherwise copyrightable IBR standards retain their copyright protection
even after a government incorporates them into law. At the same time, the bill would require that SDOs make IBR standards
publicly accessible online in a readable format at no monetary cost to users. The Pro Codes Act would not require SDOs to
make IBR standards available for printing or download, and SDOs could require users to agree to terms and conditions before
accessing the standards.
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Contents
Introduction ..................................................................................................................................... 1
Copyright Basics ............................................................................................................................. 2
Case Law on Copyright in IBR Standards ...................................................................................... 3
Conflicting Decisions by the Federal Courts of Appeals (1980–2002) ..................................... 4
The D.C. Circuit’s 2018 Ruling in ASTM v. PRO I ................................................................... 5
The Supreme Court’s Ruling in Georgia v. PRO (2020) ........................................................... 6
Developments After Georgia v. PRO ........................................................................................ 7
Takings Clause Issues ...................................................................................................................... 9
The Pro Codes Act .......................................................................................................................... 11
Considerations for Congress.......................................................................................................... 13

Contacts
Author Information ........................................................................................................................ 14

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Copyright in Standards Incorporated by Reference into Law and the Pro Codes Act

Introduction
For decades, federal courts weighed competing legal arguments about the copyright status of
privately authored material that is later copied or incorporated by reference into federal, state, or
local laws and regulations.1 A bill introduced in the 118th Congress, the Pro Codes Act,2 seeks to
address this issue legislatively. The Pro Codes Act would make clear that copyright protection
applies to privately authored, incorporated-by-reference (IBR) standards, while also requiring that
the standards be made publicly accessible online in a readable format at no monetary cost to
users.3 This report explains the current law and litigation surrounding copyright in IBR standards.
Current federal policy generally encourages agencies to use privately developed “voluntary
consensus standards” instead of “government-unique standards.”4 Private standards-developing
organizations (SDOs)5 often develop these standards, which are then used by the government for
various purposes.6 Federal regulations require that standards incorporated by reference into
federal regulations be made “reasonably available to interested parties.”7 State and local
governments also often rely on IBR standards, and may have differing policies for public access.8
Technical standards—such as communications standards or fire safety and building codes—are
typically original works of authorship entitled to copyright protection.9 Copyright protection,
when applicable, allows SDOs to prevent third parties from making and distributing unauthorized
copies of their standards.10 SDOs may rely on copyright to earn money through selling copies of
their standards (e.g., an electrical code handbook) to people who use those standards (e.g., a
property developer).11 Copyright may thus allow SDOs to recoup the cost of developing
standards, which includes consulting with experts and stakeholders in particular industries and
technical areas to reach consensus on effective technical solutions.12

1 See, e.g., Am. Soc'y for Testing & Materials v. Public.Resource.Org, Inc., No. 22-7063, 2023 WL 5918491, at *5
(D.C. Cir. Sept. 12, 2023) [hereinafter ASTM v. PRO II]; Am. Soc’y for Testing & Materials v. Public.Resource.Org,
Inc., 896 F.3d 437, 444 (D.C. Cir. 2018) [hereinafter ASTM v. PRO I]; Veeck v. S. Bldg. Code Cong. Int’l, 293 F.3d
791 (5th Cir. 2002); Bldg. Officials & Code Adm’rs v. Code Tech., Inc., 628 F.2d 730 (1st Cir. 1980).
2 H.R. 1631, 118th Cong. (2023); S. 835, 118th Cong. (2023). As H.R. 1631 and S. 835 are substantively identical, this
report will hereinafter cite only to H.R. 1631 (as introduced) for simplicity.
3 Id. § 3.
4 WHITE HOUSE OFFICE OF MANAGEMENT AND BUDGET, OMB Circular No. A-119: Federal Participation in the
Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities 17 (Feb. 10, 1998)
(revised Jan. 27, 2016), https://www.whitehouse.gov/wp-content/uploads/2020/07/revised_circular_a-
119_as_of_1_22.pdf.
5 Resources: Standards Developing Organizations (SDOs), AM. NAT’L STANDARDS INST.,
https://www.standardsportal.org/usa_en/resources/sdo.aspx (last visited Aug. 8, 2023).
6 See U.S. Standards System: Government Use of Standards, AM. NAT’L STANDARDS INST,
https://www.standardsportal.org/usa_en/standards_system/government_use_standards.aspx (last visited Aug. 8, 2023).
7 1 C.F.R. § 51.5(b)(2) (2019); 5 U.S.C. § 552(a)(1). See also Incorporation by Reference in the CFR, ADMIN. CONF. OF
U.S. (Dec. 8, 2011), https://www.acus.gov/recommendation/incorporation-reference.
8 See ASTM v. PRO I, 896 F.3d 437, 442 (D.C. Cir. 2018) (reviewing requirements for incorporation of standards by
references in the District of Columbia).
9 17 U.S.C. § 102(a).
10 See 17 U.S.C. § 106.
11 Press Release, Sen. Chris Coons, Protecting and Enhancing Public Access to Codes (Pro Codes) Act of 2023 (Mar.
16, 2023), https://www.coons.senate.gov/imo/media/doc/pro_codes_act_one_pager.pdf.
12 About the ANSI Incorporated by Reference (IBR) Portal, AMERICAN NATIONAL STANDARDS INSTITUTE,
https://ibr.ansi.org (last visited, Aug. 8, 2023).
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When technical standards become incorporated into the law, however, maintaining copyright
protection on them may raise a “serious constitutional concern” about public access to the law.13
Various public-access and government-transparency organizations—such as Public.Resource.Org,
Inc. (PRO)—have disregarded SDOs’ copyright assertions and posted technical standards for free
online.14 These groups argue that IBR standards lose copyright protection once they are
incorporated into law, or that their activities are a permitted fair use of SDOs’ copyrighted
material.15 Citing both old and recent Supreme Court case law,16 public-access groups argue that
because all citizens are entitled to freely access and debate the law under the Constitution’s Due
Process Clause and the First Amendment,17 access to it cannot be conditioned on the consent of a
copyright holder (here, the SDO). Several copyright disputes between SDOs and public-access
organizations have led to protracted litigation.18
This debate has generated congressional interest as well. On July 19, 2023, the House Committee
on the Judiciary held a markup hearing on the Pro Codes Act.19
This report provides background on the issue of copyright for IBR standards and explains the
ongoing litigation in American Society for Testing and Materials v. Public.Resource.Org (ASTM
v. PRO) and similar cases.20 It also analyzes the potential relevance of the Supreme Court’s 2020
decision in Georgia v. Public.Resource.Org (Georgia v. PRO), which concerned claims of
copyright in the official annotations to Georgia’s state code.21
Copyright Basics
Copyright protects fixed, creative works of authorship, including literary works.22 Although facts
themselves are not copyrightable, written explanations about facts (e.g., a scientific textbook) and
original arrangements of facts are copyrightable.23 In general, then, a manual of technical
standards is an original work to which copyright applies, and the author or copyright holder has
the exclusive right to copy and distribute that work (among other rights).24 Another person who
copies that work without the copyright holder’s permission may infringe the copyright and be
liable for damages and other legal remedies.25

13 ASTM v. PRO I, 896 F.3d at 447.
14 See, e.g., Global Public Safety Codes, INTERNET ARCHIVE,
https://archive.org/details/publicsafetycode?tab=collection&query=public.resource.org (last visited Aug. 8, 2023).
15 See, e.g., ASTM v. PRO I, 896 F.3d at 446.
16 See Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834); Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498 (2020).
17 See generally Cong. Rsch. Serv., Historical Background on Free Speech Clause, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt1-7-1/ALDE_00013537/ (last visited Aug. 16, 2023); Cong. Rsch.
Serv., Overview of Due Process, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/amdt5-5-
1/ALDE_00013721/ (last visited Aug. 16, 2023).
18 See generally Isaiah Poritz, Copyrights Are Murky for Laws Referring to Outside Safety Codes, BLOOMBERG LAW,
Mar. 24, 2023, https://news.bloomberglaw.com/ip-law/copyrights-are-murky-for-laws-referring-to-outside-safety-
codes.
19 Markup of H.R. 1631, H.R. 4250, and H.R. 4639 Before the H. Comm. on the Judiciary, 118th Cong. (2023); H.R.
1631, 118th Cong. (2023), https://judiciary.house.gov/committee-activity/markups/hr-1631-hr-4250-and-hr-4639.
20 597 F. Supp. 3d 213 (D.D.C. 2022).
21 Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498 (2020).
22 17 U.S.C. § 102(a)(1).
23 Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).
24 See 17 U.S.C. § 106.
25 Id. §§ 501–505.
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At least four legal limitations on copyright, however, might apply to IBR standards. First, under
the statutory “government works” doctrine, copyright protection is unavailable for “any work of
the United States Government.”26 That includes works (such as this report) created by federal
officers and employees as part of their official duties.27 Second, under the judicially developed
“government edicts” doctrine, copyright does not vest in works created by judges and legislators
(including state officers) in the course of their official judicial and legislative duties.28 Third,
under the fair use doctrine, courts permit certain socially valuable uses of copyrighted works that
would otherwise be infringing, based on balancing factors such as the purpose of the use, the
nature of the copyrighted work, the amount used, and any potential economic harm from the
use.29 Fourth, under the idea/expression distinction and merger doctrine, copyright protection
does not extend to facts or ideas;30 when there are only a few ways to express an idea, the
expression is said to “merge” with the idea, and neither is copyrightable.31
SDOs may also have trademark rights in the symbols they use to identify themselves as a source
of goods and services, such as a logo on the cover of a standards manual.32 Although trademark
claims have also arisen in litigation between public-access groups and SDOs,33 they are not
analyzed in this report.
Case Law on Copyright in IBR Standards
The copyright status of IBR standards has been litigated in a number of significant federal cases
since at least the 1980s. Despite more than 40 years of history, courts have not reached a
definitive consensus on (1) whether technical standards remain protected by copyright after they
are incorporated by reference into law, or (2) if IBR standards are protected, whether the fair use
doctrine or the Constitution permits third parties to make them publicly available despite the
copyright.
On the first issue—whether incorporation by reference into law puts standards into the public
domain—several decisions by the federal courts of appeals have reached seemingly inconsistent
conclusions.34 Following the D.C. Circuit’s 2018 ruling in ASTM v. PRO I and the Supreme
Court’s 2020 decision in Georgia v. PRO,35 recent cases have increasingly avoided the broader
copyrightability issue and focused instead on the fair use doctrine, while typically ruling against
SDOs’ copyright infringement claims.36

26 Id. § 105(a).
27 Id. § 101; see also U.S. COPYRIGHT OFFICE, COMPENDIUM OF U.S. COPYRIGHT OFFICE PRACTICES, § 313.6(C)(1) (3d.
ed. 2021), https://www.copyright.gov/comp3/docs/compendium.pdf [hereinafter COPYRIGHT OFFICE COMPENDIUM].
28 See Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498, 1506 (2020); COPYRIGHT OFFICE COMPENDIUM
§ 313.6(C)(2). As a formal matter, the “government edicts” doctrine is a long-standing judicial interpretation of the
term “author” as used in the Copyright Act. Georgia v. PRO, 140 S. Ct. at 1507. It is motivated by the “animating
principle” that “no one can own the law.” Id.
29 17 U.S.C. § 107. See, e.g., Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 143 S. Ct. 1258, 1274 (2023).
30 See 17 U.S.C. § 102(b); Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 356 (1991).
31 See Concrete Mach. Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 607 (1st Cir. 1988).
32 See generally CRS In Focus IF12456, An Introduction to Trademark Law in the United States, by Christopher T.
Zirpoli (2023).
33 See, e.g., ASTM v. PRO I, 896 F.3d 437, 454 (D.C. Cir. 2018).
34 See infra “Conflicting Decisions by the Federal Courts of Appeals (1980–2002).”
35 See infra “The D.C. Circuit’s 2018 Ruling in ASTM v. PRO I” and “The Supreme Court’s Ruling in Georgia v. PRO
(2020).”
36 See infra “Developments After Georgia v. PRO.”
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Conflicting Decisions by the Federal Courts of Appeals (1980–2002)
Several of the early cases in this area involve model building codes. For example, Building
Officials and Code Administrators International v. Code Technology Inc.37 concerned a model
building code privately developed by the plaintiff, known as BOCA for short, and later adopted in
substantial part by the Commonwealth of Massachusetts under a license. BOCA sold book copies
of its model code under the title Commonwealth of Massachusetts State Building Code and sued a
competitor for copyright infringement when it published a competing book version of the
Massachusetts code.38 Although the district court awarded a preliminary injunction to BOCA, the
U.S. Court of Appeals for the First Circuit reversed.39 Without ruling “definitively” on the issue
given the procedural posture, the First Circuit implied that, because “[d]ue process requires
people to have notice of what the law requires of them,” Massachusetts’s adoption rendered the
official building code “freely available for copying by anyone, notwithstanding BOCA’s
copyright.”40
In Veeck v. Southern Building Code Congress International, the U.S. Court of Appeals for the
Fifth Circuit, sitting en banc, largely agreed with the First Circuit, albeit over the dissent of six
judges.41 The dispute in Veeck involved a model building code adopted by two Texas towns and
made available on a noncommercial website run by Peter Veeck.42 The developer of the building
codes sent a cease-and-desist letter to Veeck, which led to litigation.43 On appeal, the Fifth Circuit
held that “as law, the model codes enter the public domain and are not subject to the copyright
holder’s exclusive prerogatives.”44 The court rested its conclusion on two doctrinal rationales: the
Supreme Court’s government-edicts cases (discussed below),45 and the merger doctrine
(reasoning that adoption as law makes the codes uncopyrightable “facts”).46
The U.S. Courts of Appeals for the Second and Ninth Circuits, in contrast, have held that
reference to or adoption of a work by a governmental body does not automatically result in a loss
of copyright protection. CCC Information Services v. MacLean Hunter Market Reports addressed
the copyright in a compendium of used car valuations called the “Red Book.”47 The Second
Circuit rejected an argument that the Red Book fell into the public domain because state law
referenced Red Book information to set minimum values for car insurance payouts.48 The court
noted that a rule that standards fell into the public domain once incorporated into law “would
raise very substantial problems under the Takings Clause of the Constitution.”49 It also suggested

37 628 F.2d 730 (1st Cir. 1980).
38 Id. at 732.
39 Id. at 736.
40 Id. at 732–35.
41 293 F.3d 791 (5th Cir. 2002).
42 Id. at 793.
43 Id. at 794.
44 Id. at 793.
45 See id. at 795–800 (citing Banks v. Manchester, 128 U.S. 244 (1888)); see infra “The Supreme Court’s Ruling in
Georgia v. PRO (2020)” (discussing Banks and the Supreme Court’s other 19th century government-edicts cases).
46 See Veeck, 293 F.3d at 801–03 (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) and 17 U.S.C.
§ 102(b)).
47 44 F.3d 61, 63 (2d Cir. 1994).
48 See id. at 74 (“We are not prepared to hold that a state’s reference to a copyrighted work as a legal standard for
valuation results in loss of the copyright.”).
49 Id. at 74. See generally Cong. Rsch. Serv., Overview of the Takings Clause, CONSTITUTION ANNOTATED,
(continued...)
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that fair use might permit some noncommercial uses of the work, which could mitigate due
process concerns.50
Finally, in Practice Management Information Corp. v. AMA, the Ninth Circuit addressed a
copyright claim in the Physician’s Current Procedural Terminology (CPT), a taxonomy of
medical procedures and associated codes developed by the American Medical Association.51 In
the 1970s, Congress instructed the Health Care Financing Administration (HCFA) to establish a
system for identifying physicians’ services for Medicare and Medicaid reimbursement forms.52
HCFA chose to adopt the CPT and incorporate it by reference into federal regulations.53 A
medical book publisher sued for a declaratory judgment that the CPT became uncopyrightable
once HCFA required the use of CPT code numbers.54 The Ninth Circuit held that the Supreme
Court’s government-edict cases did not apply, relying largely on public policy arguments.55 The
court observed that “[n]on-profit organizations that develop these model codes and standards
warn they will be unable to continue to do so if the codes and standards enter the public domain
when adopted by a public agency.”56 It also found that any due process concerns were sufficiently
addressed by AMA’s own publication of the CPT.57
The D.C. Circuit’s 2018 Ruling in ASTM v. PRO I
More recent judicial examinations of copyright in IBR standards can be found in ASTM v. PRO,
an ongoing, decade-long litigation in the federal courts of the District of Columbia.58 In 2013,
several SDOs sued PRO for copyright infringement after PRO made thousands of technical
standards available for free download online.59 PRO raised several copyright and constitutional
defenses, arguing that “citizens must have free access to the law.”60 The district court rejected
PRO’s arguments, holding that the SDOs had valid copyrights that PRO infringed.61
The U.S. Court of Appeals for the D.C. Circuit reversed the district court’s ruling.62 Its opinion
observed that technical standards are “as diverse as they are many,” and that governmental bodies
incorporate them by reference in ways that “var[y] widely by jurisdiction.”63 In particular, some
IBR standards “define one’s legal obligations,” while others “serve as mere references but have

https://constitution.congress.gov/browse/essay/amdt5-9-1/ALDE_00013280/ (last visited Aug. 8, 2023); CRS Report
R47562, The Takings Clause of the Constitution: Overview of Supreme Court Jurisprudence on Key Topics, by Adam
Vann (2023).
50 CCC Info. Servs., 44 F.3d at 74 n.30.
51 121 F.3d 516, 517 (9th Cir. 1997).
52 Id. at 518.
53 Id.
54 Id.
55 See id. at 518–20.
56 Id. at 519.
57 Id. (“[T]he due process requirement of free access to the law . . . may be relevant but does not justify termination of
the AMA’s copyright. There is no evidence that anyone wishing to use the CPT has any difficulty obtaining access to
it.”)
58 See 896 F.3d 437 (D.C. Cir. 2018).
59 Id. at 444.
60 Id. at 446.
61 See id. at 444–45.
62 Id. at 458.
63 Id. at 441–42.
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no direct legal effect.”64 In part because of the many different uses of IBR standards, the appeals
court chose not to make a broad ruling on the “serious constitutional concerns” raised by PRO
under the First Amendment and Due Process Clause.65 Instead, the court took a “narrower
approach” focused on the fair use doctrine.66 On that statutory ground, the court held that the
district court erred in granting summary judgment to the SDOs because there was a genuine
factual dispute on the fair use issue.67 Although the court’s analysis of the fair use factors
suggested that it thought that PRO’s use was likely fair,68 the D.C. Circuit ultimately remanded
the case to the district court for further proceedings.69
Later decisions in the ASTM v. PRO litigation followed the Supreme Court’s intervening decision
in Georgia v. PRO, and so are discussed separately below.70
The Supreme Court’s Ruling in Georgia v. PRO (2020)
While litigating against ASTM in the D.C. Circuit, PRO was also defending against a separate
copyright infringement claim by the State of Georgia in a case that ultimately reached the
Supreme Court. Georgia v. PRO involved the copyrightability of the annotations to the Official
Code of Georgia Annotated (OCGA).71 (Annotations to statutes or judicial decisions typically
provide commentary, explanations, or context about the code provision or judicial opinion.72)
LexisNexis, a private company, prepared those annotations under a work-for-hire agreement with
a Georgia state entity called the Code Revision Commission.73 Under that agreement, Lexis did
the work of drafting the annotations, but the Commission held the copyright in them.74 In return,
Lexis received the exclusive right to publish and sell the OCGA and committed to make an
unannotated version of the code available online for free.75 After PRO posted a digital version of
the OCGA online, the Commission sued PRO for copyright infringement.76
Georgia v. PRO focused on whether the OCGA was ineligible for copyright under the
government-edicts doctrine, as developed through a trio of 19th-century Supreme Court cases:

64 Id. at 442–43.
65 See id. at 447.
66 Id.
67 Id. at 453.
68 See id. at 449–53 (analyzing the fair use factors as applied to PRO’s distribution of IBR standards and suggesting
that “in many cases, it may be fair use for PRO to reproduce part or all of a technical standard in order to inform the
public about the law”).
69 Id. at 448–49. Judge Katsas’s concurring opinion in ASTM v. PRO I expressed his view that as “a matter of common
sense . . . access to the law cannot be conditioned on the consent of a private party.” Id. at 458 (Katsas, J., concurring).
Citing BOCA and Veeck, he argued that the result may be based on the First Amendment, the Due Process Clause, the
idea/expression distinction, or the fair use doctrine. Id. at 459.
70 See infra “Developments After Georgia v. PRO.”
71 Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498 (2020).
72 See id. at 1504 (“[A]nnotations generally include summaries of judicial decisions applying a given provision,
summaries of any pertinent opinions of the state attorney general, and . . . often include editor’s notes that provide
information about the origins of the statutory text . . . . ”); Annotation, BLACK’S LAW DICTIONARY (11th ed. 2019).
73 Georgia v. PRO, 140 S. Ct. at 1505.
74 Id.
75 Id.
76 Id.
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Wheaton v. Peters,77 Banks v. Manchester,78 and Callaghan v. Myers.79 Those cases all involved
copyright in the work product of judges. Under Wheaton and Banks, federal and state judicial
opinions—or any “products of the labor done by judicial officers in the discharge of their judicial
duties”—are not copyrightable and “free for publication for all.”80 Under Callaghan, however,
exposition about judicial opinions authored by private parties (or even a state court reporter)—
such as headnotes, tables of contents, case summaries, and the like—are copyrightable.81
Georgia v. PRO presented the Court with an “unusual” situation in which annotations about the
law—which would be copyrightable if written by a private entity—were published under
Georgia’s authority as part of the official Georgia state code.82 Chief Justice Roberts’s opinion for
the Court read the government-edicts cases to establish “a straightforward rule based on the
identity of author.”83 Under that rule, “copyright does not vest in works that are (1) created by
judges and legislators (2) in the course of their judicial and legislative duties,” regardless of
whether the work is binding (like a statute) or not binding (like an annotation).84 The “animating
principle” underlying that rule is that “no one can own the law.”85
Applying its rule, the majority in Georgia v. PRO found that because Lexis made the annotations
under an agreement with an “arm” of the Georgia state legislature, the annotations were authored
by the legislature in the course of its legislative duties.86 The Court thus held that the annotations
were not copyrightable.87
Developments After Georgia v. PRO
SDOs and public-access groups dispute the relevance of Georgia v. PRO to their ongoing
copyright disputes.88 Public-access groups cite the case for its pronouncement that “no one may
own the law” and argue that incorporation by reference transforms privately authored standards
into uncopyrightable government edicts.89 For their part, SDOs contend that the key to the Court’s
decision in Georgia v. PRO was that the OCGA annotations were authored by the legislature.90 In
contrast, most IBR standards are created independently of the government. Under Georgia v.

77 33 U.S. 591 (1834).
78 128 U.S. 244 (1888).
79 128 U.S. 617 (1888).
80 Banks, 128 U.S. at 253.
81 Callaghan, 128 U.S. at 650; see also Georgia v. PRO, 140 S. Ct. at 1507.
82 Georgia v. PRO, 140 S. Ct. at 1505.
83 Id. at 1506.
84 Id. at 1508.
85 Id. at 1501.
86 Id. at 1508–09.
87 Id. at 1509. Justice Thomas, joined by Justices Alito and Breyer, dissented in Georgia v. PRO, reading the 19th-
century cases to forbid copyright in statutes and regulations, but to permit copyright in nonbinding annotations that
“lack[] legal force.” Id. at 1515 (Thomas, J., dissenting). Justice Ginsburg, joined by Justice Breyer, dissented
separately, arguing that the annotations were copyrightable even under the majority’s rule because, on the facts, the
annotations were not actually made in the course of the legislature’s official duties. Id. at 1523 (Ginsburg, J.,
dissenting).
88 See, e.g., Facility Guidelines Inst. Inc., v. UpCodes, Inc., No. 22-CV-01308, 2023 WL 4026185, at *3 (E.D. Mo.
June 15, 2023).
89 See, e.g., ASTM v. PRO, 597 F. Supp. 3d 213, 231 (D.D.C. 2022), aff’d, No. 22-7063, 2023 WL 5918491 (D.C. Cir.
Sept. 12, 2023).
90 See Facility Guidelines, 2023 WL 4026185, at *3.
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PRO, the government-edicts doctrine does not apply to “private parties” who “lack the authority
to make or interpret the law.”91
At least three federal district courts have decided cases involving copyright in IBR standards
following Georgia v. PRO. All three held that the government-edicts doctrine did not apply, but
largely ruled against the SDOs’ copyright claims on other grounds. One of these decisions was
appealed and upheld by the appellate court.
The first case, International Code Council v. UpCodes, Inc.,92 involved 40 model building codes
that the defendant UpCodes made available online in both free and paid subscription versions.93
The court held that the government-edicts doctrine was “not dispositive” because the codes were
privately developed, but still provided “significant guidance.”94 Attempting to synthesize the
“apparent contradictions” in the case law discussed above, the court found the key issue was
whether privately authored model codes had “become the law.”95 To make that determination, the
court considered five “guideposts”:
(1) whether the private author intended or encouraged the work’s adoption into law;
(2) whether the work comprehensively governs public conduct, such that it resembles a
“law of general applicability”; (3) whether the work expressly regulates a broad area of
private endeavor; (4) whether the work provides penalties or sanctions for violation of its
contents; and (5) whether the alleged infringer has published and identified the work as
part of the law, rather than the copyrighted material underlying the law.96
Ultimately, the court relied on BOCA, Veeck, and the fair use doctrine to hold that the plaintiff
SDO could not prevent the online posting of IBR standards as adopted into law.97 The court also
noted, however, that the SDO may have an infringement claim for material that intermingles
adopted law with unenacted parts of the model codes.98
The second case is the district court’s opinion in the ASTM v. PRO litigation addressing the fair
use issues remanded by the D.C. Circuit.99 That decision held that the SDOs had a valid
copyright, reasoning that the government-edicts doctrine did not apply because the government
did not author the IBR standards.100 At the same time, the court held that PRO’s use of the
standards (i.e., making them available to download for free online) was a fair use for 184 of the
217 standards at issue, including all those incorporated by reference into law verbatim.101
On appeal, the D.C. Circuit affirmed the district court’s fair use determination, holding that “non-
commercial dissemination of [IBR] standards, as incorporated by reference into law, constitutes

91 Georgia v. PRO, 140 S. Ct. at 1507.
92 No. 17 Civ. 6261, 2020 WL 2750636 (S.D.N.Y. May 27, 2020).
93 Id. at *2–3.
94 Id. at *8.
95 Id. at *16.
96 Id. (citing Bldg. Offs. & Code Adm. v. Code Tech., Inc., 628 F.2d 730 (1st Cir. 1980) and Veeck v. S. Bldg. Code
Cong. Int’l, Inc., 293 F.3d 791 (5th Cir. 2002)).
97 See id. at *17, *28.
98 See id. at *7, *29.
99 ASTM v. PRO, 597 F. Supp. 3d 213 (D.D.C. 2022), aff’d, No. 22-7063, 2023 WL 5918491 (D.C. Cir. Sept. 12,
2023).
100 597 F. Supp. 3d at 231 (“Unlike in Georgia [v. PRO], there is no evidence here that that state legislators hired
Plaintiffs to draft the standards.”).
101 See id. at 240–41.
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fair use.”102 The D.C. Circuit’s 2023 decision, ASTM v. PRO II, focuses on the fair use issue and
follows the analysis that the court sketched in its 2018 decision.103 The court emphasized that the
purpose of the use was for non-profit and educational purposes,104 and that the legal force of IBR
standards places them “at the outer edge of copyright’s protective purposes.”105 Although the
court acknowledged that “[c]ommon sense suggests that free online access to many of the
[SDOs’] standards would tamp down the demand for their works,” it found the record evidence of
actual market harm equivocal; in any event, that factor did not outweigh the other fair use factors
favoring PRO.106
The final case, Faculty Guidelines Institute v. UpCodes, Inc.,107 concerned building and design
codes for health care facilities that UpCodes made available for free online.108 As in the other
post-Georgia v. PRO cases, the court held that the government-edicts doctrine did not apply
because the codes were privately authored, though it noted that the doctrine “offers important
insight into the analysis.”109 Expressing sympathy with the “majority” view that “model codes
that are adopted into state law, or incorporated by reference, are not subject to copyright
infringement,”110 the court ultimately denied the SDO’s motion for a preliminary injunction based
on the fair use doctrine.111
Takings Clause Issues
The Takings Clause of the Fifth Amendment states that “private property [may not] be taken for
public use, without just compensation.”112 In simple terms, the Takings Clause provides that the
federal or state governments113 may take an individual’s property only when (1) it is for a public
use;114 and (2) the government pays just compensation to the property owner.115 For example,
consistent with the Takings Clause, the government may use its eminent domain power to
appropriate real property for the construction of a railroad, as long as it pays the owner the fair
market value of the land.116
In decisions involving copyright in IBR standards, courts have sometimes invoked the Takings
Clause as a reason to be cautious about holding that incorporation into law extinguishes the
copyright in standards or model codes. For example, a recent district court decision noted that “a

102 ASTM v. PRO II, No. 22-7063, 2023 WL 5918491, at *1, *8 (D.C. Cir. Sept. 12, 2023).
103 See supra “The D.C. Circuit’s 2018 Ruling in ASTM v. PRO I.”
104 ASTM v. PRO II, 2023 WL 5918491, at *3–*4.
105 Id. at *4 (quoting ASTM v. PRO I, 896 F.3d 437, 451 (D.C. Cir. 2018)).
106 Id. at *6–*7.
107 No. 22-cv-01308, 2023 WL 4026185 (E.D. Mo. June 15, 2023).
108 Id. at *1.
109 Id. at *3–4.
110 Id. at *4.
111 See id. at *7–11.
112 U.S. CONST. amend. V; see generally Cong. Rsch. Serv., Overview of the Takings Clause, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/amdt5-9-1/ALDE_00013280/ (last visited Aug. 16, 2023).
113 By in terms, the Fifth Amendment restricts only the federal government, but the Supreme Court has long held that
the Takings Clause applies to state governments under the Due Process Clause of the Fourteenth Amendment. See
Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 231 (1984); Chi., Burlington & Quincy R.R. v. City of Chicago, 166 U.S.
226, 241 (1897).
114 See Kelo v. City of New London, 545 U.S. 469, 477 (2005).
115 See Knick v. Twp. of Scott, 139 S. Ct. 2162, 2170 (2019).
116 See United States v. Miller, 317 U.S. 369, 370–74 (1943).
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bright line rule that any privately developed model code adopted into state law automatically
becomes part of the public domain . . . may raise significant concerns under the Takings
Clause.”117 Other courts have rejected this reasoning, arguing that because SDOs urge
governments to adopt their standards, the Takings Clause (which usually involves a coercive
seizure of property) is inapplicable.118
Although courts have discussed the Takings Clause in conjunction with other arguments, none of
the cases discussed above involved a formal takings claim, and it does not appear that any court
has directly decided how the Takings Clause applies to IBR standards. Theoretically, if the courts
ruled that IBR standards fell into the public domain upon adoption into law, an SDO might sue
the federal or state government under the Takings Clause for compensation based on the loss of
their copyright. Under federal law, property owners may sue the United States for takings claims
or copyright infringement in the U.S. Court of Federal Claims.119
As a practical matter, SDOs have not sued governments for a taking based on their incorporation
of standards by reference into law, instead suing third parties for copyright infringement based on
their distribution of IBR standards.120 There are many possible reasons why SDOs have not
brought a Takings Clause claim. For one thing, the premise of that claim—that incorporation into
law extinguishes copyright in IBR standards—is one that the SDOs have vigorously disputed in
litigation.121 For takings claims against state governments, another potential barrier is state
sovereign immunity to copyright infringement claims.122
Given the lack of case law, the merits of a potential takings claim in this context are uncertain. To
begin with, it is not completely settled that copyrights are “private property” subject to the

117 Facility Guidelines Inst., Inc. v. UpCodes, Inc., No. 22-CV-01308, 2023 WL 4026185, at *7 (E.D. Mo. June 15,
2023); accord CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reps., Inc., 44 F.3d 61, 74 (2d Cir. 1994).
118 See Veeck v. S. Bldg. Code Cong. Int’l, Inc., 293 F.3d 791, 803 (5th Cir. 2002) (“This is not, however, a ‘takings’
case, not least because [the SDO] urged localities to adopt its model codes. The issue in the case is not the
voluntariness of the appropriation but the legal consequences . . . .”); accord Int’l Code Council, Inc. v. UpCodes, Inc.,
No. 17 CIV. 6261, 2020 WL 2750636, at *13–14 (S.D.N.Y. May 27, 2020).
119 See 28 U.S.C. §§ 1491, 1498(b); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016 (1984).
120 See, e.g., Int’l Code Council, 2020 WL 2750636, at *1.
121 See supra “Case Law on Copyright in IBR Standards.”
122 See Allen v. Cooper, 140 S. Ct. 994, 999 (2020). To the extent that the claim against the state is for a taking in
violation of the Fifth and Fourteenth Amendments (as opposed to an ordinary statutory copyright infringement claim),
Allen is arguably distinguishable. See Knick v. Twp. of Scott, 139 S. Ct. 2162, 2170 (2019).
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Takings Clause.123 The weight of authority suggests that they are, however.124 It is also not clear
whether a court would view the hypothetical loss of the copyright based on incorporation into law
as a per se taking (which must always be compensated),125 or as a putative “regulatory taking”
(under which whether compensation is required depends on judicial balancing of several
factors).126
The Pro Codes Act
The Pro Codes Act was introduced in the 118th Congress with the stated intention to “balance the
goals of furthering the creation of standards and ensuring public access to standards that are
incorporated by reference into law or regulation.”127 Its findings section states that federal, state,

123 See Tom W. Bell, Copyright As Intellectual Property Privilege, 58 SYRACUSE L. REV. 523, 538 (2008) (describing
the Takings Clause’s applicability to copyright as “unlitigated and, thus, still subject to dispute”). There is a large
scholarly literature on this question and the closely related question of whether the Takings Clause should apply to
patent rights. For arguments supporting the application of the Takings Clause to copyrights and patents, see, for
example, Note, Copyright Reform and the Takings Clause, 128 HARV. L. REV. 973, 981–83 (2015) (arguing that the
best reading of the Supreme Court’s precedent is that “copyrights are property for takings purposes”); Terry Hart,
Copyright and the Takings Clause, COPYHYPE (Dec. 10, 2012), https://www.copyhype.com/2012/12/copyright-and-the-
takings-clause/ (arguing that “it’s reasonable to conclude that the Takings Clause would apply to copyrights”); Adam
Mossoff, Patents As Constitutional Private Property: The Historical Protection of Patents Under the Takings Clause,
87 B.U L. REV. 689, 691 (2007) (arguing the 19th-centuty jurisprudence established that “patents were protected under
the Takings Clause”); Thomas F. Cotter, Do Federal Uses of Intellectual Property Implicate the Fifth Amendment?, 50
Fla. L. Rev. 529, 566–68 (1998) (arguing that Supreme Court precedent implies that patents, copyrights, and “to a
lesser extent” trademarks should be covered by the Takings Clause). For arguments against applying the Takings
Clause to copyrights or patents, see Robin Feldman, Patents As Property for the Takings, 12 N.Y.U. J. INTELL. PROP. &
ENT. L. 198, 205 (2023) (arguing based on history and theory that “patents do not fall within the Fifth Amendment's
[Takings] Clause”); Bell, supra, at 539 (arguing that because “copyrights exist only by the grace of the Constitution,
the Court’s definition of ‘property’ appears not to shelter copyright” under the Takings Clause); Davida H. Isaacs, Not
All Property Is Created Equal: Why Modern Courts Resist Applying the Takings Clause to Patents, and Why They Are
Right to Do So, 15 GEO. MASON L. REV. 1, 3 (2007) (arguing that “patentholders are not entitled to a Takings Clause
remedy”).
124 See Copyright Reform and the Takings Clause, supra note 123, at 982 (“[T]he weight of scholarly opinion is that
copyrights are property for takings purposes. And there is some direct evidence that the [Supreme] Court would
agree.”). The Supreme Court has held that trade secrets, another type of “intangible” property, are protected by the
Fifth Amendment. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003–04 (1984). The Court has also repeatedly stated
that patents are a protected property interest under the Fifth Amendment. See, e.g., Horne v. Dep’t of Agric., 576 U.S.
350, 359–60 (2015) (“[A patent] confers upon the patentee an exclusive property in the patented invention which
cannot be appropriated or used by the government itself, without just compensation . . . .” (alteration in original)
(quoting James v. Campbell, 104 U.S. 356, 358 (1881))). The reasoning of these decisions suggests that the Court may
find that copyright is a form of intellectual property sufficiently like trade secrets and patents to be protected under the
Fifth Amendment. See E. Enters. v. Apfel, 524 U.S. 498, 554 (1998) (Breyer, J., dissenting) (“The ‘private property’
upon which the [Takings] Clause traditionally has focused is a specific interest in physical or intellectual property.”
(emphasis added)). Notably, the Court has recently held that copyrights are a protected property interest under the
Fourteenth Amendment’s Due Process Clause. See Allen v. Cooper, 140 S. Ct. 994, 1004 (2020) (“Copyrights are a
form of property [protected by the Fourteenth Amendment].”). There is also some case law in the lower federal courts
on these issues. See, e.g., Celgene Corp. v. Peter, 931 F.3d 1342, 1358 (Fed. Cir. 2019) (assuming that “a valid patent is
private property for the purposes of the Takings Clause”); Roth v. Pritikin, 710 F.2d 934, 939 (2d Cir. 1983) (“An
interest in a copyright is a property right protected by the due process and just compensation clauses of the
Constitution.”).
125 See, e.g., Tahoe-Sierra Pres. Council v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 322 (2002) (“When the
government physically takes possession of an interest in property for some public purpose, it has a categorical duty to
compensate the former owner [under the Takings Clause].”); Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019
(1992) (per se taking when “the owner of real property has been called upon to sacrifice all economically beneficial
uses in the name of the common good”).
126 See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124–25 (1978).
127 H.R. 1631, 118th Cong. § 2 (2023).
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and local governments “benefit greatly” from SDO-created standards, which “further innovation
[and] commerce” and are “critical to protecting public health and safety.”128 The bill also states
that SDOs ensure “all interested parties have an opportunity to participate” without “costs to
governments or taxpayers,” and “rely on copyright protection” to fund the voluntary consensus
process for creating and updating their standards.129
The Pro Codes Act would establish that a standard protected by copyright when it was created
“shall retain such [copyright] protection, notwithstanding that the standard is incorporated by
reference” into federal, state, or local law.130 The bill would thus supersede Veeck and similar
cases that have held that such standards fall into the public domain once incorporated into law or
regulation. To retain their copyright, however, SDOs must make “all portions of the standard so
incorporated publicly accessible online at no monetary cost” within a “reasonable time.”131 A
party challenging an SDO’s copyright based on a failure to comply with this public-access
requirement would bear the burden of proof.132
In short, the Pro Codes Act would provide that SDOs would retain copyright in IBR standards so
long as they make that material publicly accessible online. The bill defines “publicly accessible”
as “displayed for review in a readily accessible manner on a public website.”133 The bill would
not require that the material be made available to print, share, or download. The public-
accessibility definition also allows SDO websites to require that users create an account or agree
to terms of service to access IBR material, so long as there is no monetary cost to the user.134
Supporters of the Pro Codes Act, including SDOs such as the National Fire Protection
Association, argue that their work creating standards provides “critical public benefits.”135 If
incorporation by reference destroys copyright protection, SDOs maintain that they will no longer
be able to fund their activities by publishing, selling, and licensing their standards to professionals
who use them.136 SDOs also note that they already permit free viewing of their standards by the
public online.137
Opponents of the Pro Codes Act, including public-access groups like PRO and internet-freedom
groups like the Electronic Frontier Foundation, argue that no one should control who can read and
distribute the law, including IBR standards.138 They maintain that SDOs “have charged high fees
and imposed other restrictions” to access their standards in the past.139 They also object to the Pro
Codes Act’s “limited” public-access requirement, which could require users to submit personal

128 Id.
129 Id.
130 Id. at § 3(a).
131 Id.
132 Id.
133 See id.
134 See id.
135 See, e.g., Jim Pauley, Pro-Codes Bill Filed to Preserve Safety Code Copyright, NAT’L FIRE PROT. ASS’N Mar. 3,
2022, https://www.nfpa.org/News-and-Research/Publications-and-media/Blogs-Landing-Page/NFPA-Today/Blog-
Posts/2022/03/03/Pro-Codes-bill-filed-to-preserve-safety-code-copyright.
136 Id.
137 Id. See, e.g., List of NFPA Codes & Standards, NAT’L FIRE PROT. ASS’N, https://www.nfpa.org/Codes-and-
Standards/All-Codes-and-Standards/List-of-Codes-and-Standards (last visited Aug. 3, 2023).
138 See, e.g., Letter from Electronic Frontier Foundation et al., to Sens. Lindsey Graham and Dick Durbin, U.S. Senate
Judiciary Comm. (Apr. 27, 2023), https://law.resource.org/pub/us/cfr/regulations.gov.foia/senate.gov.20230427.pdf.
139 Id.
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information to view IBR standards, and deny them the ability to print and download standards.140
Under the Pro Codes Act, SDOs may choose to make only an “economy-class version” of the
IBR standards available for free,141 alongside paid versions with more functionality.
The Pro Codes Act speaks only to the existence of copyright in IBR standards, and would not
explicitly address the fair use issue or constitutional defenses asserted by public-access groups in
litigation.142 Thus, even if the Pro Codes Act were enacted, groups like PRO may still assert fair
use arguments like those accepted by the court in ASTM v. PRO II, although the enactment might
be interpreted by courts to inform the fair use analysis. Even if a fair use defense failed, public-
access groups may still rely on First Amendment and Due Process Clause arguments, which a
statute cannot supersede. It is not clear, then, that enactment of the Pro Codes Act would resolve
all the issues litigated in the cases discussed above.
Considerations for Congress
Although it arises in a specialized context, debates over copyright in IBR standards ultimately
involve the core policy tradeoff for copyright and other forms of intellectual property: balancing
incentives for creation versus access to (and the cost of) creative works.
On the incentive side, Congress may consider whether judicial decisions—which have recently
trended against SDOs’ copyright claims—have undercut SDOs’ ability to fund their operations
through publishing and selling their standards. Some may question whether copyright protection
for IBR standards is necessary, arguing that SDOs could fund their activities in other ways or
combine IBR standards with other material to create an unambiguously copyrightable form of
their work. Others, including many SDOs, maintain that copyright is needed for them to recoup
the costs of standards creation.143 On that view, uncertainty in current law may undermine SDOs
and the social benefits they create for lawmakers, governmental agencies, and the public.
On the access side, Congress may consider what kind of public access to IBR standards is
appropriate. As discussed above, different courts have reached different conclusions on the
copyrightability of IBR standards or the permitted uses of such standards under the fair use
doctrine. As a practical matter, many SDOs have made their work freely available to the public in
some form, while some public-access groups have sought to facilitate greater public accessibility
(e.g., permitting free downloads of IBR standards). The Pro Codes Act would require SDOs to
provide a level of online access at no cost to users, but it would appear to allow SDOs to impose
some conditions on viewing and to restrict downloading and printing. Congress may consider
whether the status quo, the Pro Codes Act, or some other alternative provides sufficient public
access to IBR standards.

140 Id.
141 Cf. Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498, 1512 (2020) (expressing concern that allowing copyright
in annotations to the official code of Georgia would create “economy-class” and “first-class” versions of state law).
142 See supra “Case Law on Copyright in IBR Standards.”
143 See Why Voluntary Consensus Standards Incorporated by Reference into Federal Government Regulations Are
Copyright Protected, AM. NAT’L STANDARDS INST.,
https://share.ansi.org/Shared%20Documents/About%20ANSI/Why-Voluntary-Consensus-Standards-Incorporated-by-
Reference-into-Federal%20Government%20-Regulations-Are-Copyright-Protected.pdf (last visited Aug. 16, 2023)
(“Another [SDO] business model relies on recouping these costs through revenue made possible from the copyright-
protected sales and licensing of the standards themselves.”).
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Given that the Copyright Act does not directly speak to the issue, the scope of the copyright in
IBR standards has largely been developed by the courts. Another issue that Congress may
consider, then, is whether it wishes to permit continued judicial development in this area, or to
intervene through legislation such as the Pro Codes Act. As different regional federal appeals
courts have reached different conclusions, legislation may have the benefit of promoting national
uniformity on the issue. Alternatively, one may argue courts are better positioned to account for
differences in IBR standards and uses of them through case-by-case application of doctrines such
as fair use.
The Pro Codes Act represents one possible option for legislating in this area. On the inventive end
of the spectrum, if Congress found that existing legal provisions144 and market incentives are
sufficient to facilitate public availability,145 it might choose to strengthen SDOs’ copyright
without imposing online-access requirements. On the access end, if Congress found that
copyright was unnecessary for SDOs, it could provide that incorporation by reference places an
IBR standard in the public domain, perhaps by expanding the reach of the statute denying
copyright to government works.146
Various statutory licensing regimes are another possibility. Under a statutory or “compulsory”
license, the government permits a certain use of a copyrighted work—regardless of actual
permission from copyright holder—while setting a royalty rate for that use by law.147 Such a
license could be structured in various ways, depending on whom Congress viewed as the
appropriate entity to pay for the IBR standards. For example, one option would be to provide that
incorporation extinguishes or diminishes copyright, but require the government to pay SDOs a set
royalty when it incorporates a standard into law.148 That approach would lose one benefit of the
current system, however, in which technical standards are developed largely without cost to
taxpayers. Another possible statutory license would allow public-access groups and others to
make IBR standards publicly available despite SDOs’ copyright claims, but require such groups
to pay a set royalty for the various uses that have been disputed in litigation.

Author Information

Kevin J. Hickey

Legislative Attorney

144 See 1 C.F.R. § 51.5(b)(2); 17 U.S.C. § 107.
145 See Prac. Mgmt. Info. Corp. v. Am. Med. Ass’n, 121 F.3d 516, 519 (9th Cir. 1997) (reasoning that there is “no
realistic threat to public access” to the IBR standard because the SDO “has no incentive to limit or forgo publication”).
146 See 17 U.S.C. § 105(a). This could raise Takings Clause concerns if applied retroactively. See supra “Takings
Clause Issues.”
147 Compulsory License, BLACK'S LAW DICTIONARY (11th ed. 2019) (“A statutorily created license that allows certain
parties to use copyrighted material without the explicit permission of the copyright owner in exchange for a specified
royalty.”).
148 See Facility Guidelines Inst., Inc. v. UpCodes, Inc., No. 22-CV-01308, 2023 WL 4026185, at *7 (E.D. Mo. June 15,
2023) (“Perhaps . . . [the] most equitable path forward involves the payment of a reasonable royalty or licensing fee
when the government adopts a privately authored model code to offset the economic harm that results from free
distribution to the public.”).
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Congressional Research Service
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