II 

118TH CONGRESS 

1ST SESSION S. 835 

To amend title 17, United States Code, to reaffirm the importance of, and 

include requirements for, works incorporated by reference into law, and 

for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 16, 2023 

Mr. COONS (for himself, Mr. CORNYN, Mr. TILLIS, and Mr. WHITEHOUSE) 

introduced the following bill; which was read twice and referred to the 

Committee on the Judiciary 

A BILL 

To amend title 17, United States Code, to reaffirm the 

importance of, and include requirements for, works incorporated by reference into law, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Protecting and En5 hancing Public Access to Codes Act’’ or the ‘‘Pro Codes 

6 Act’’. 

7 SEC. 2. FINDINGS. 

8 Congress finds the following: 


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1 (1) Congress, the executive branch, and State 

2 and local governments have long recognized that the 

3 people of the United States benefit greatly from the 

4 work of private standards development organizations 

5 with expertise in highly specialized areas. 

6 (2) The organizations described in paragraph 

7 (1) create technical standards and voluntary con8 sensus standards through a process requiring open9 ness, balance, consensus, and due process to ensure 

10 all interested parties have an opportunity to partici11 pate in standards development. 

12 (3) The standards that result from the process 

13 described in paragraph (2) are used by private in14 dustry, academia, the Federal Government, and 

15 State and local governments that incorporate those 

16 standards by reference into laws and regulations. 

17 (4) The standards described in paragraph (3) 

18 further innovation, commerce, and public safety, all 

19 without cost to governments or taxpayers because 

20 standards development organizations fund the proc21 ess described in paragraph (2) through the sale and 

22 licensing of their standards. 

23 (5) Congress and the executive branch have re24 peatedly declared that, wherever possible, govern25 ments should rely on voluntary consensus standards 


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1 and have set forth policies and procedures by which 

2 those standards are incorporated by reference into 

3 laws and regulations and that balance the interests 

4 of access with protection for copyright. 

5 (6) Circular A–119 of the Office of Manage6 ment and Budget entitled ‘‘Federal Participation in 

7 the Development and Use of Voluntary Consensus 

8 Standards and in Conformity Assessment Activi9 ties’’, issued in revised form on January 27, 2016, 

10 recognizes the benefits of voluntary consensus stand11 ards and incorporation by reference, stating that 

12 ‘‘[i]f a standard is used and published in an agency 

13 document, your agency must observe and protect the 

14 rights of the copyright holder and meet any other 

15 similar obligations.’’. 

16 (7) Federal agencies have relied extensively on 

17 the incorporation by reference system to leverage the 

18 value of technical standards and voluntary consensus 

19 standards for the benefit of the public, resulting in 

20 more than 23,000 sections in the Code of Federal 

21 Regulations that incorporate by reference technical 

22 and voluntary consensus standards. 

23 (8) State and local governments have also rec24 ognized that technical standards and voluntary con25 sensus standards are critical to protecting public 


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1 health and safety, which has resulted in many such 

2 governments— 

3 (A) incorporating those standards by ref4 erence into their laws and regulations; or 

5 (B) entering into license agreements with 

6 standards development organizations to use the 

7 standards created by those organizations. 

8 (9) Standards development organizations rely 

9 on copyright protection to generate the revenues 

10 necessary to fund the voluntary consensus process 

11 and to continue creating and updating these impor12 tant standards. 

13 (10) The people of the United States have a 

14 strong interest in— 

15 (A) ensuring that standards development 

16 organizations continue to utilize a voluntary 

17 consensus process— 

18 (i) in which all interested parties can 

19 participate; and 

20 (ii) that continues to create and up21 date standards in a timely manner to— 

22 (I) account for technological ad23 vances; 

24 (II) address new threats to public 

25 health and safety; and 


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1 (III) improve the usefulness of 

2 those standards; and 

3 (B) the provision of access that allows peo4 ple to read technical and voluntary consensus 

5 standards that are incorporated by reference 

6 into laws and regulations. 

7 (11) As of the date of enactment of this Act, 

8 many standards development organizations make 

9 their standards available to the public free of charge 

10 online in a manner that does not substantially dis11 rupt the ability of those organizations to earn rev12 enue from the industries and professionals that pur13 chase copies and subscription-access to those stand14 ards (such as through read-only access), which en15 sures that the public may read the current, accurate 

16 version of such a standard without significantly 

17 interfering with the revenue model that has long 

18 supported those organizations and their creation of, 

19 and investment in, new standards. 

20 (12) Through this Act, and the amendments 

21 made by this Act, Congress intends to balance the 

22 goals of furthering the creation of standards and en23 suring public access to standards that are incor24 porated by reference into law or regulation. 


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1 SEC. 3. WORKS INCORPORATED BY REFERENCE INTO LAW. 

2 (a) IN GENERAL.—Chapter 1 of title 17, United 

3 States Code, is amended by adding at the end the fol4 lowing: 

5 ‘‘§ 123. Works incorporated by reference into law 

6 ‘‘(a) DEFINITIONS.—In this section: 

7 ‘‘(1) CIRCULAR A–119.—The term ‘Circular A– 

8 119’ means Circular A–119 of the Office of Manage9 ment and Budget entitled ‘Federal Participation in 

10 the Development and Use of Voluntary Consensus 

11 Standards and in Conformity Assessment Activities’, 

12 issued in revised form on January 27, 2016. 

13 ‘‘(2) INCORPORATED BY REFERENCE.— 

14 ‘‘(A) IN GENERAL.—The term ‘incor15 porated by reference’ means, with respect to a 

16 standard, that the text of a Federal, State, 

17 local, or municipal law or regulation— 

18 ‘‘(i) references all or part of the 

19 standard; and 

20 ‘‘(ii) does not copy the text of that 

21 standard directly into that law or regula22 tion. 

23 ‘‘(B) APPLICATION.—The creation or pub24 lication of a work that includes both the text of 

25 a law or regulation and all or part of a stand26 ard that has been incorporated by reference, as 


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1 described in subparagraph (A), shall not affect 

2 the status of the standard as incorporated by 

3 reference under that subparagraph. 

4 ‘‘(3) STANDARD.—The term ‘standard’ means a 

5 standard or code that is— 

6 ‘‘(A) a technical standard, as that term is 

7 defined in section 12(d) of the National Tech8 nology Transfer and Advancement Act of 1995 

9 (15 U.S.C. 272 note); or 

10 ‘‘(B) a voluntary consensus standard, as 

11 that term is used for the purposes of Circular 

12 A–119. 

13 ‘‘(4) STANDARDS DEVELOPMENT ORGANIZA14 TION.—The term ‘standards development organiza15 tion’ means a holder of a copyright under this title 

16 that plans, develops, establishes, or coordinates vol17 untary consensus standards using procedures that 

18 incorporate the attributes of openness, balance of in19 terests, due process, an appeals process, and con20 sensus in a manner consistent with the requirements 

21 of Circular A–119. 

22 ‘‘(5) PUBLICLY ACCESSIBLE ONLINE.— 

23 ‘‘(A) IN GENERAL.—The term ‘publicly ac24 cessible online’, with respect to material, means 


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1 that the material is displayed for review in a 

2 readily accessible manner on a public website. 

3 ‘‘(B) RULE OF CONSTRUCTION.—If a user 

4 is required to create an account or agree to the 

5 terms of service of a website or organization in 

6 order to access material online, that require7 ment shall not be construed to render the mate8 rial not publicly accessible online for the pur9 poses of subparagraph (A), if there is no mone10 tary cost to the user to access that material. 

11 ‘‘(b) STANDARDS INCORPORATED BY REFERENCE

12 INTO LAW OR REGULATION.—A standard to which copy13 right protection subsists under section 102(a) at the time 

14 of its fixation shall retain such protection, notwithstanding 

15 that the standard is incorporated by reference, if the appli16 cable standards development organization, within a rea17 sonable period of time after obtaining actual or construc18 tive notice that the standard has been incorporated by ref19 erence, makes all portions of the standard so incorporated 

20 publicly accessible online at no monetary cost. 

21 ‘‘(c) BURDEN OF PROOF.—In any proceeding in 

22 which a party asserts that a standards development orga23 nization has failed to comply with the requirements under 

24 subsection (b) for retaining copyright protection with re25 spect to a standard, the burden of proof shall be on the 


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1 party making that assertion to prove that the standards 

2 development organization has failed to comply with those 

3 requirements.’’. 

4 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

5 The table of sections for chapter 1 of title 17, United 

6 States Code, is amended by adding at the end the fol7 lowing: 

‘‘123. Works incorporated by reference into law.’’. 

Æ 


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