It’s Open Access Week in the United States, which means it’s a chance to celebrate the accomplishments of the Open Access movement—and reinforce the need to keep fighting. We’ve come a long way, with governments, universities, and research funders all successfully pressuring publishers to improve access to knowledge and finding ways to do it themselves.
Tell Congress: Access To Laws Should Be Fully Open
At EFF, we are especially proud of the work we have done helping our client, Public.Resource.Org (PRO), improve public access to the law. Public Resource’s mission is to make all government information available to the governed. As part of that mission, it posts safety codes such as the National Electrical Code, on its website, for free, in a fully accessible format—where those codes have been adopted into law by reference.
You didn’t learn about incorporation by reference from Schoolhouse Rock, but it’s one of the key ways policymakers create law. A huge portion of the regulations we all live by (such as fire safety codes, or the National Electrical Code) are initially written—by industry experts, government officials, and other volunteers—under the auspices of standards development organizations (SDOs). Federal, state, or municipal policymakers then review the codes and decide whether the standard is a good broad rule. If so, it is adopted into law “by reference.” In other words, the regulation cites the code by name but doesn’t copy and paste the entire thing into law (useful when the code is long and detailed). For example, if a regulation requires compliance with the National Fire Safety Code, it might simply refer to specific provisions or the code as a whole, rather than copying it in directly. But that doesn’t make compliance any less mandatory.
When a pipeline bursts, journalists might want to investigate whether the pipeline complied with federal regulations, or compare federal, state, and local rules. When a toy is recalled, parents want to know whether its maker followed child safety rules. When a fire breaks out, homeowners and communities want to know whether the building complied with fire safety regulations. Online access to safety regulations helps make that review—and accountability—possible.
The rub: the SDOs claim to own copyright in these rules, even after they become law, and that they are therefore allowed to sell and otherwise control access to them. Based on that claim, they sued Public Resource for copyright infringement.
But court after court has recognized that no one can own the law. The Supreme Court held as much in its very first copyright case, and recently reaffirmed it: if “every citizen is presumed to know the law,” the Court observed, “it needs no argument to show . . . that all should have free access to its contents.” And in September 2023, after a decade of litigation, a federal appeals court held that Public Resource’s database was a lawful fair use.
Which brings us to the latest threat. Having lost in court, the SDOs are now looking to Congress to shore up their copyright claim, via the Pro Codes Act. It’s a tricky bit of legislation that seems innocuous if you don’t know the context.
Pro Codes’ main provision requires that:
An original work of authorship otherwise subject to protection under this title that has been adopted or incorporated by reference, in full or in part, into any Federal, State, or municipal law or regulation, shall retain such protection only if the owner of the copyright makes the work available at no monetary cost for viewing by the public in electronic form on a publicly accessible website in a location on the website that is readily accessible to the public.
Sounds good, right? In fact, it sounds obvious: mandatory regulations should be made available online, for free, so people can more easily know, share, and comment on them. Here’s the trick: this language would effectively endorse the claim that SDOs can “retain” copyright in the law, as long as they let the public read it online.
There are many problems with this approach. First and foremost, “access” here means read-only, and subject to licensing limits. We already know what that looks like: currently the SDOs that make their codes available to the public online do so through clunky, disorganized, siloed websites, largely inaccessible to the print-disabled, and subject to onerous contractual terms (like a requirement to give up your personal information). The public can’t copy, print, or even link to specific portions of the codes. In other words, you can look at the law (as long as you aren’t print-disabled and you know what to look for), but you can’t share it, compare it, or comment on it. As multiple amici who filed briefs in support of Public Resource explained, the public needs more.
Second, it doesn’t really make sense. The many volunteers who develop these codes neither need nor want a copyright incentive. The SDOs don’t need it either—they don’t do anything creative (convening volunteers is important work, but not creative work), and they make plenty of profit though trainings, membership fees, and selling standards that haven’t been incorporated into law.
Third, it’s unconstitutional under the First, Fifth, and Fourteenth Amendments, which guarantee the public’s right to read, share, and discuss the law.
Finally, there is no need for this bill. It simply mandates that SDOs do badly what Public Resource is already doing, better, for free.
The Pro Codes Act is a deceptive power grab that will help giant industry associations ration access to huge swaths of U.S. law. Tell Congress not to fall for it.
EFF is proud to celebrate Open Access Week.
Tell Congress: Access To Laws Should Be Fully Open