No One Can Own The Law—So Why Is Congress Advancing A Bill To Extend Copyright To It?

"Last week, the US House of Representatives Judiciary Committee voted to advance the Protecting and Enhancing Public Access to Codes Act, or the Pro Codes Act (H.R. 1631), to the full House. The bill would extend copyright protection to codes (such as building codes) that are developed by standards development organizations (SDOs) and incorporated by reference into local, state, and federal laws, as long as the SDOs make the codes “available to the public free of charge online in a manner that does not substantially disrupt the ability of those organizations to earn revenue.”

This is the latest development in a long-running battle between SDOs and public interest groups that have posted online standards incorporated by reference. SDOs have sued these public interest groups for copyright infringement, and the public interest groups have argued that once the standards are incorporated by reference, they lose their copyright protection. The public interest groups have argued in the alternative that the fair use right permits the online posting of the standards. The courts have ruled in favor of the public interest groups on the fair use theory without addressing the protectability argument. The Pro Codes Act seeks to foreclose the protectability argument without directly implicating the fair use theory...."