“Protecting U.S. Leadership in Codes Development and Enhancing Public Access”
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House Judiciary Subcommittee on Courts, Intellectual Property, Artificial Intelligence, and the Internet U.S. House of Representatives
Follow its sittingsSpeaker 1
Ultimately, we believe on this side of the dais that the American people have a right to see their laws. It doesn't mean they have a right to take it all, to use it, to resell it, to monetize it. That's short of what you have with the law. And for that reason, we have the grand compromise of H.R. 472, the Pro Codes Act. We want to preserve copyright for a reason.
If I were to stack up every book, many of them thicker than this one, that is produced by these 8,000 companies, we would have this day as filled. When you look at those books, and I'll ask some of the witnesses here today. When you look at those books carefully, you see some things that clearly look like the law, but you also see an amazing amount of information, warnings, how tos, things that, in fact, would be in any good manual. We are not in another country. In The US, we go in our own way.
So I want to be clear. Reference to other countries and how they do it really doesn't matter. And it doesn't matter because America is where we are because of our respect and balance for intellectual property. Lastly, and I'll close with this and recognize the ranking member. There are those who will argue that if something is once fact and everyone knows it, it's not copyrightable.
For those like me who love to cook, does that mean that when Betty Crocker tells you how to make cookies and she gives a set of ingredients, and those are the same ingredients and sometimes the exact same measurements that other recipes have, that somehow the Betty Crocker book should not be copyrighted, and anyone should be able to monetize it while it's still under copyright? I disagree with that, and that is the reason that it was so important to have a second hearing to make it clear that when this goes to the floor, this will be a statement by the US Congress that we believe in those original principles of promoting while balancing these works of these authors. And with that, I recognize the ranking member for his opening statement.
Speaker 2
Thank you, mister chairman, and thank you to the witnesses for your appearances today for this very important hearing. When I get home to Georgia after a long week, I get off the plane, take the airport rail to my car, pick up my car from the parking area. And once I get home, I park the car, walk into my house, turn the lights on. I might fix some hot tea after pouring some water and heating it up in the microwave. And, I really think about it, but all of these steps from the airport to my house are governed by codes developed by standards developing organizations or SDOs.
Standards governing everything from light rail and parking garages to home fire codes and water piping touch each of us in our everyday lives. When a contractor works on your house or a firefighter inspects your workplace for fire safety, they have to consult their respective codes. While most of us know that these codes exist, we rarely consider where those codes come from. An important part to you and me is that the standards in those codes work. They keep us safe.
They keep our lives running. With us, none the wiser. STOs regularly get together and come up with state-of-the-art guidelines for their trades. These best practices govern everything from consumer safety and household utility installation to home electrical wiring and plumbing. SDOs make sure your house won't catch fire.
Your plumbing is up to code. Your water boiler is installed correctly, and everything in between. If you live in an area that might be affected by floods or earthquakes, you want to ensure your house is built to withstand natural disasters. You rely on your local contractor, and your contractor relies on their SDO standards. Now so far as this sounds like a great hearing for the transportation and infrastructure committee, which I also serve on, the reason why this is in the intellectual property subcommittee of judiciary is because this subcommittee cares about standards and is because of recent circuit court decisions that have made it harder for SDOs to assert their copyright when others post their codes online.
States and local governments frequently adopt SDO-developed codes by reference into law. They do this for a few reasons, but primarily because the government doesn't have the funds to employ experts to develop a unique building code and do not update the law often enough to keep up with the changes of society and in best practices. So Georgia, for example, can refer to the National Fire Protection Association's most updated, or up-to-date, code in their laws. That way, the law is always up to date, and they don't have to pay experts to develop something new. This is the point where intellectual property issues arise.
Some point to the Supreme Court's Georgia versus publicresource.org decision and say, quote, that no one owns the law. If you can't access the code, you don't know what the law says, and Americans have a reasonable interest in knowing they can access the laws that govern them. Others point out that SDOs fund their work by selling their copyrighted material to experts who use it to make necessary evaluations, repairs, and installations. Without this rigorous development and dedication to constant improvement, they argue, American standards would fall behind. So we find ourselves in a dilemma.
Once the code is law, it seems only reasonable that Americans should be able to figure out what the law says. On the other hand, SDOs fund their work, which we rely on to keep us safe, through the sale of their copyrighted works. And they and we also have an interest in ensuring these codes always reflect the highest possible standards. And we can't do that without income or revenue. Multiple circuit court decisions have found that the publication of codes incorporated by reference is fair use.
So if we want to ensure that SDOs retain their copyright, legislation is necessary. The question is, what kind of legislation? Last congress, I voted in favor of the pro codes act, but at the time, I expressed concern that we hadn't had a fact-finding hearing to listen to all the different sides to this issue. I understand that there are quite a few different perspectives represented here, and I commend my colleague, Chairman Isa, for working with me to put together a panel of witnesses that can speak to the many facets of the copyright problems within corporation by reference. I look forward to hearing from the witnesses, and I yield back the remainder of my time.
Speaker 1
I thank the chairman or the ranking member. I now recognize the chairman of the full committee, Mr. Jordan.
Speaker 3
I just wanna thank the chairman for this hearing, for our witnesses who are here today, and for the chairman's persistence in trying to get this legislation across the finish line. With that, I would yield back.
Speaker 1
Thank the gentleman. And I recognize the ranking member, the gentleman from Maryland, Mr. Raskin.
Speaker 4
Thank you, chairman. I say thanks to all of our witnesses for joining us today. We've got two competing principles in play today, both of them deeply rooted in our constitutional culture. And one of them is the protection and incentivization of creators through copyright, and the other is the idea that public laws must be available to the public on a universally accessible and free basis. And so, the pro codes act introduced by the distinguished chairman, Mister Isa, and our esteemed colleague representative Ross seeks to reconcile these principles by promoting innovation alongside a legal system that the public can access.
And I recognize there's no shortage of strong, divergent opinions on all sides of this issue, sometimes held by the exact same person, as people change their minds over time about this question, which sometimes can seem kind of esoteric. But, it's incumbent upon this committee to study the details here where the answer is going to lie. We've gotta be sure that we are reconciling these two principles. And, the devil's in the details, mister chairman, and I look forward to hearing from our excellent witnesses.
Speaker 6
Okay. Thank you so much for that, mister chairman, and the ranking member. And thank you to our witnesses for being here. I think it is very important that we have a full and robust conversation about this issue. Representative Aiza and I have been through this in the committee.
We've had a markup in committee, but we haven't had this kind of philosophical debate with outside folks coming in. So I'm really glad that we're doing that. I do wanna let people know who may be tuning in for this for the first time. Last congress, there was a lot of activity on this bill, and there were a lot of changes made with the input of people who had ideas for how to improve public access, particularly input from the disability community, and I sponsored those amendments. When I get my opportunity to ask our witnesses some questions, you'll hear a little bit more about how I view this.
But I do think that the bill in its current form has only been getting better and fairer and more inclusive of the public, while protecting the intellectual property of the people who have put their blood, sweat, and tears in it and promote our safety. And it will give that kind of balance, and I hope encourage the people who have been doing this amazing work on these codes for decades, the incentive to keep doing their work and keep the public safe while providing that access to people who need to know what's in the law. So thank you so much, Mister Chairman, and I look forward to the discussion.
Speaker 1
Thank you. And ranking member yields back. We now introduce our panel of experts for their opening statements. Swearing in afterwards, still. Yes.
We begin with Mister James Paulie. Mister Paulie is president and chief executive officer of the National Fire Protection Association, a nonprofit association that develops standards and codes related to fire prevention. The NFPA also engages in research, training, education, outreach, and advocacy. Mister Keith Cooper Schmidt is the president and chief executive officer of the Copyright Alliance, a nonprofit organization that advocates on behalf of creators and innovators. He previously served as the general counsel and senior vice president for intellectual property at the Software and Information Industry Association.
Mister John, Delivari is the general counsel at the American Society of Mechanical Engineers, ASME, a professional association of mechanical engineers. The ASME develops codes and standards and provides professional resources like publications, conferences, continuing education, professional development, and resources to its members. Mister Jonathan Band is an attorney and advocate who works on matters related to intellectual property. Today, I am representing the Library Copyright Alliance, which consists of American library associations and associations of research libraries. Both organizations consist of librarians and research librarians.
We welcome all our witnesses, and thank you for appearing here today. As I said earlier, we have a and Miss Ross said very well, we have a well balanced group, that we believe represent the entire spectrum of those involved in this issue. Pursuant to the committee rules, I would ask that all witnesses rise to be sworn in. And raise your right hand. Do you solemnly swear or affirm under penalty of perjury that the testimony you're about to give will be true and correct to the best of your knowledge, information, and belief?
So help you, God. Thank you. Please be seated. Let the record reflect that all witnesses answered in the affirmative. Mister Paulie will go from your side to that side, if that's alright.
You know the routine here. Five minutes. We're not gonna cut you off mid-sentence, but please stay as close to that so we can have plenty of time for questions. The gentleman's recognized.
Speaker 5
Chairman ISA, ranking member Johnson, and distinguished members of the subcommittee, thank you for this opportunity to testify today. My name is Jim Paulie. I'm the president and CEO of the National Fire Protection Association. I wanna start today with a number, 54%. That's how much fire incidents have declined in this country since 1980.
Home fire deaths over that same time period are down 44 percent. Now those numbers didn't happen by chance. They happen because of rigorous safety standards developed by independent nonprofit organizations like the NFPA, and they represent the lives saved, the families spared, and the disasters prevented. Now for nearly 130 years, the NFPA has developed codes and standards that protect lives and property from fire, electrical, and life safety challenges. We develop and update more than 300 of these in an open, transparent, consensus-based process.
These standards are used by a wide range of stakeholders: insurance companies, manufacturers, contractors, designers, government, but we don't develop them for any one group. We also don't take money from industries that are affected by our standards, and we don't rely on taxpayer funding to create them. We fund this work by selling our standards to the professionals who use them. That's the copyright model at work, and it's produced one of the most successful public-private partnerships in American history. The need for this system is accelerating.
From devastating wildfires to new risk from lithium-ion batteries, the NFPA is developing standards to address challenges that didn't exist just 10 years ago. Not to mention our efforts to continuously update the hundreds of critical existing standards, like the National Electrical Code, that has protected Americans for generations. Now don't take my word that the system is working. Governments at every level regularly turn to the work of nonprofit standards developers, because that work can be trusted. There are tens of thousands of incorporations by reference across American law and regulation.
Every home, every school, every office building. Americans benefit from these standards, whether they know it or not. And I wanna be clear about something. Government comes to us, not the other way around. When lawmakers and regulators are trying to solve a safety problem, they turn to organizations like NFPA because they value what it is that we can provide.
But those solutions only exist if the system that produces them can be independently funded. If you take away copyright protection, the funding disappears. And with it, the systems that have made Americans safer for more than a century. That's where the Pro Codes Act comes in. This bipartisan bill reaffirms the copyright protections for standards incorporated by reference, while promoting transparency for the public.
Now I know the subcommittee will hear from critics of the legislation, and I'd like to address some of those claims directly. Most common is that the pro codes act puts the law behind a paywall. But codes and standards are not law. They are privately authored works created by independent nonprofits to solve safety problems. Governments recognize their value and choose to reference them, but that doesn't make them the government's work.
Others argue that Congress doesn't need to worry about this, that the courts are handling this just fine. Record says otherwise. Lower federal courts have reached inconsistent conclusions without a definitive resolution. This is a policy question, and the constitution commits that policy question to Congress. And then there's the argument that none of this matters because the STOs have not gone out of business.
I believe this misses the point entirely. The current system is like a dam, and the court decisions are putting cracks in the dam. And those of us downstream, right now, it's just our feet that are wet. But if Congress waits for the dam to break, we can't come back from this. And there's no alternative that is nearly as effective.
Other models, standards that are written by government or by industry, either force taxpayers to foot the bill or let the regulated industries write their own standards. Every year, the standards that NFPA and organizations like us develop prevent tragedies that no one will ever hear about. Fires that don't start, buildings that don't collapse, families that come home safe. That's what we stand to lose if Congress doesn't act. I urge you to pass the Pro Codes Act and ensure that the system that has protected Americans for more than a century can continue to do so.
Thank you, and I look forward to your questions.
Speaker 7
Chairman ISO, ranking member Johnson, and distinguished members of the subcommittee, thank you for holding this hearing and for inviting me to testify on this very important issue. In addition to over 2,000,000 individual creators that we represent, the Copyright Alliance also represents the copyright interests of motion picture studios, record labels, and publishers of books, music, newspapers, and I'm just a few that are commonly associated with copyright. But we also represent organizations that the typical person may not associate with copyright, but who likewise rely heavily on its protections for their businesses. One such group are standard development organizations, or SEOs for short. Importantly, we also represent numerous organizations that use and license these standards.
The urgent issue we are here to discuss today is how can we ensure that high quality copyrightable standards continue to be developed and updated, while also promoting public access to those standards when they are incorporated by reference into the law or IVR for short. When a standard is IVRed, the public should have access to the standard. To be clear, that access is being provided today. Standards are widely available. They'll they're available for free online and for reasonable prices via print and through subscription.
Significantly, there is absolutely no record of individuals not being able to access these standards. The cases that have been litigated all involve either commercial enterprises like Upcodes or ideological organizations like Public Resources, not individuals. While Upcodes and public resources claim they are promoting public access, the records of these cases do not reflect any true lack of access or availability. As to the copyrightability part of the issue, I've not heard anyone suggest that the standards are not protected by copyright upon creation. There is no existing copyright doctrine under which standards would or should lose their copyright protection when they are IBRed.
In other words, IBRed standard presents a totally unique issue, one in which the courts are ill-fitted to solve. Litigation in federal courts has created uncertainty regarding the copyright status of standards that have been IBRed. This lack of clarity and misapplication of the law threatens to destabilize the entire standards development ecosystem. Moreover, when these courts misapply standards for copyrightability or fair use, the resulting analysis and decision by these courts have a ripple effect that harms not only SDOs, but also the potential to harm many other copyright owners. Congress, not the courts, is best positioned to establish a consistent and fair approach to this issue.
Only Congress can address this tension by interpreting the law as it is written and setting the record straight when courts misinterpret the law and stretch it in ways that are unbalanced, unfair, and misguided. The pro codes act attempts to directly address this tension by ensuring that the public has access to standards that are IVRed without cost, while clarifying the copyright protections that make the development of these standards possible in the first place. The benefits of this approach are substantial and far-reaching. First, it preserves the incentives that drive the creation of high-quality standards. By maintaining copyright protection, the act would ensure that STOs can continue to fund their operation, invest in research and development, and update standards to reflect new technologies and best practices.
Second, it promotes public access. Anyone who must use these standards will be able to view the relevant standard online at no cost. This enhances transparency. Third, it benefits taxpayers and governments. Without this system, the burden of developing complex technical standards would likely fall on government agencies, requiring significant public funding and the creation of new bureaucratic infrastructure.
Fourth, it supports effective governance. Legislators and regulators can continue to rely on expert-developed standards rather than attempting to replicate the ad expertise within the government, a task that they are ill suited for and would be both costly and ineffective. In conclusion, the PRO Act represents a pragmatic middle ground. It does not require choosing between public access and copyright protection. Instead, it achieves both.
It ensures that the public can access standards when IPRed while preserving the system that produces the law's technical content. This is the kind of legislative solution that is most effective, one that recognizes the legitimate interest on all sides and crafts a balanced approach, while also serving the broader public good. The timing of this legislation is critical. Courts are actively grappling with these issues, and the risk of divergent and incorrect interpretations is real. Acting now allows Congress to provide guidance before a patchwork of conflicting decisions take hold.
For these reasons, I respectfully urge this subcommittee to advance the PRO Codes Act in some form. Thank you for your time and consideration. I look forward to answering your questions.
Speaker 8
Chairman ISA, ranking member Johnson, and members of the subcommittee. Thank you for the opportunity to testify today. I'm John Delivanieri, general counsel of the American Society of Mechanical Engineers, abbreviated ASME. ASME is a 501c3 nonprofit standards development organization, commonly referred to as an SDO, that has served the engineering profession and the public since 1880. Broadly speaking, our standards help ensure that construction cranes do not collapse, nuclear facilities do not fail, oil and gas pipelines do not rupture, and the turbines used in civilian and defense applications are cutting edge.
ASME's flagship boiler and pressure vessel code, here, I have one volume out of 33. It's used by manufacturers as a foundation for many civilian and defense technologies. The PRO CODES Act harms ASME's copyright and that of other STOs materially, perhaps existentially. It does so by fundamentally reshaping copyright law to benefit a single type of SDO while eroding the copyrights of others. Because of this, nobody should make the blank statement that this bill is universally good for copyright, because it isn't good for ASME's copyright and other SDOs like it. Let me make three points to demonstrate this.
First, the pro codes act picks winners and losers. Second, it weakens US national security and leadership and standards development at a time of increasing geopolitical competition. And third, it rewrites fundamental copyright law by introducing the concept of conditional copyright. First, this bill is a mandate that picks winners and losers. The scope of this bill is broad.
The standards ASME is trying to protect are not local building and fire standards. The standards that I'm asking this committee to protect are broader in scope, aimed at a different audience, and used in a different way. The operation of the Pro Codes Act is automatic. There's no due process attached anywhere to this legislation. There's no limit to the number of codes that can be incorporated by reference or how many of these codes can be referenced.
Here is an important point. Under current copyright law, a standards holder has no way of preventing incorporation by reference. To put things simply, the pro codes act has no mechanism to distinguish between the standards that are a set of rules for the erection of a carport and a set of differential equations used by nuclear engineers to design a safe, small, modular nuclear reactor. This is not to suggest that these other standards don't play an important role in our society, but that is why organizations like ASME and the Society of Automotive Engineers oppose this bill. Second, the pro codes act risks national security and leadership in standards development.
Technological standards are not simply a set of rules. They enable the development of cutting-edge technology that is safe, repeatable, and interoperable. The United States leads the world in standards development because of a system built on private sector expertise, voluntary consensus, and sustained investment. Because of ASME and other organizations like us who create complex standards, the United States leads the world in technologic and scientific innovation. In a new geopolitical world where rival countries have recognized that standards can be used to affect how technology evolves, we should not see this important US leadership role.
Third, the Pro Codes Act fundamentally changes the law of copyright, rendering it contingent on the decisions of any governmental body. Copyright has long provided creators with exclusive defined rights, including the ability to control the distribution of their works. The pro codes act fundamentally changes that framework. It now interjects an entirely new concept of copyright, which is conditioned on the decisions of the government. The result is forced publication, forced public distribution of privately developed works without compensation.
This is not protection. It's compelled forfeiture. In conclusion, the Pro Codes Act is presented as a balanced solution. It is not. It's a mandate that, one, picks losers and winners, two, weakens US national security and leadership and standards development, and fund three, fundamentally rewrites copyright law to erode, not protect copyright.
If Congress is going to pass legislation, it must not contort the law to protect one set of private actors while potentially destroying others. I ask this committee to reject the PRO CARDS Act. Thank you, and I look forward to your questions.
Speaker 9
Chairman ISA, ranking member Johnson, and members of the subcommittee. Thank you for the opportunity to share the library perspective on the Pro Codes Act. I represent the Library Copyright Alliance. Today, I will discuss our concerns with pro codes and how it interferes with public access to the law. Then I will propose a better way forward.
Governments directly incorporating standards into the law rather than just incorporating them by reference. Libraries are strongly committed to the government edicts doctrine, the principle that no one can own the law. We believe that once a portion of a standard is incorporated into the law, whether directly or by reference, that portion enters into the public domain and can be posted freely online. Pro codes would attempt to reverse the government edicts doctrine in a narrow but significant way by affirming copyright ownership over IBR standards. I have four points concerning pro codes.
First, pro codes is unconstitutional. The government edicts doctrine is rooted in the constitution, allowing a private entity exclusive ownership of the law would run contrary to the rights of free expression and due process. I acknowledge the bill's attempt to limit its adverse effect by requiring a degree of public access, but this public access requirement is insufficient to cure the bill's constitutional infirmity. The bill does not require the full text of the public access version to be searchable, downloadable, or reproducible. The bill would still interfere with the person's ability to understand and comment on their legal obligations.
Second, pro codes would limit public access to the law. Because of the limited read-only nature of its public access requirement, pro codes would make it difficult for members of the public to access the law and IVR situations. Also, the act would codify existing restrictive practices of SDOs that require users to create an account and agree to the terms of service in order to access the material online. The net result is the bill would restrict public awareness of the law, escalate the cost of homeownership by increasing cost to builders, and inhibit commentary and criticism, among other negative impacts. Third, pro codes is based on an incorrect premise.
The basic premise of pro codes is that without the incentive provided by copyright, SDOs would not undertake the costly standard development process. This premise is incorrect. In the vast majority of cases, industry participants have an economic incentive to participate in the development of standards. Often, SDOs lobby government entities to adopt their standards as law. In the absence of copyright protection, SDOs would still develop standards and then request government entities to adopt them as regulations.
Also, in the recent fair use litigation, courts have found that the reposting of IBR standards has not caused harm to the market for those standards. Fourth, pro codes would not achieve the certainty its supporters seek. Even if pro codes were enacted, the SDAs would not necessarily be able to prevent the reposting of IBR standards with any certainty. A court might still find that the reposting of an IBR standard was fair use. In the recent litigation concerning the reposting of standards, the courts have permitted the reposting under a fair use theory.
Direct incorporation is a better way to address this issue. IBR is an analog-era solution that was necessary when voluminous standards were available only in printed publications that were expensive to produce. Now that standards can be made available digitally, it would be more efficient and effective to require government agencies to incorporate standards directly into codes, and to make the complete codes available online from the official agency website. Before direct incorporation, the agency might have to request a royalty-free license from the STO. We expect that most STOs would eagerly grant such a license because their objective in creating the standard in the first place was for it to be adopted by an agency as a regulation.
I'm happy to answer any questions the subcommittee may have.
Speaker 3
Chairman, thank you very much. Mister Pauli, let me start with you, and I think these numbers are kind of what was what you laid out. But fire incidents since 1980 have declined by 54 percent, and home fire deaths have declined by 44 percent over the same period. So because of the work of the standards development organ the STO, like NFPA, in other words, when Americans go to bed tonight, they're safer because of the standards your organization has developed. Do you think that's correct?
Speaker 3
So on average, how much do you think it costs? This is a tough one to answer, maybe. Of what it costs for NFPA to develop a new standard or update a current standard that might be.
Speaker 5
I appreciate that question. It is a tough one to cost, to answer. The vast majority of our expenses that we incur do go to the development of standards because it's not just, I realize people think of it as just words on paper, but I have engineering staff that have to staff technical committees. I have IT staff that has to put the systems in place to be able to update those standards. We have to operate as an entire function to be able to carry out this work.
So the vast majority of our expenses do go. We don't track it by individual standards. We look at it as an entire process.
Speaker 3
But the copyright attached to the code is the primary revenue that's generated to fund that process.
Speaker 5
Yes, sir. Representative Fitzgerald, it makes up about 70% of our revenue, which comes from the sale and licensing of our codes and standards.
Speaker 3
So do you think you could continue to have kind of the self-funded model, absent the pro codes act?
Speaker 5
No, sir. I believe that's exactly what's at risk today, is that the model works not only because it's self-funded, but because it also allows us to be independent. And that's such a critical part in the development of codes and standards. We put people around the table so that no one entity or interest can control the outcome of the standard. And us being independent is what's important to do.
If we have to do that by taking money from the industry, it won't be independent. If we have to take money from the government, it won't be independent. This model's worked for a century, and it has worked well, and it has served the public well.
Speaker 3
Very good. Thank you. Mister Vaniry, I don't wanna put words in your mouth, but your association's concerns with the proposed pro codes act, a lot of it seems to be centered around the mandated posting of the codes online. Is that an accurate statement?
Speaker 3
Okay. And that's because some of the codes are for national security, critical industries, and specific types of technologies. Is that correct?
Speaker 8
It's not necessarily just the technologies, Mr. Fitzgerald. The question and the problem with the pro codes act is that the person or the entity that decides whether or not my copyrighted material must be posted online for free is not the copyright holder. It's not ASME. It's the roughly 50, 90 thousand jurisdiction in The United States that decide what they wanna incorporate and what they don't want. And because the premise cool pool commission can take my 33 volume standard and say, we're incorporating by reference, it automatically puts a mandate on me to publish that out on the web.
And I don't have control over that. Incorporation by reference is not a copyright violation. So I have no way to stop anybody from incorporating by reference. And if you've got enough jurisdictions out there incorporating this, incorporating that, you can essentially wind up with having the whole thing out there. And the other piece of our standards that are different than mister Pauli's is our standards are for manufacturers.
By the time our standards, by the time a product gets into the hands of a consumer, all of the compliance is done by the manufacturer, not by the consumer. So it's they're different, and that's part of the reason why I have an issue with the bill as drafted because it's one size fits all no matter what kind of standard you're dealing with.
Speaker 3
So one more follow-up, I guess, would be there's been some discussion about national security implications. Can you just reference it quickly? What could they?
Speaker 8
Oh, absolutely. So manufacturers come to us because we're a 501c3, and they donate their time. The concept that I'm trying to get around is it costs a lot of money to do these very highly technical codes. If you take away my revenue source, I leave the field. And then who's gonna come into the field?
It's gonna be geopolitical rivals.
Speaker 2
I'm sorry. Didn't catch you. So, mister. Yeah. Mister Delavanires, I'm having trouble understanding how the legislation could be improved to accommodate your criticisms, which are that it draws no meaningful distinctions between highly technical engineering standards as opposed to the text of laws, or between standards incorporated in their entirety as opposed to standards incorporated only in part, or to standards used extensively as opposed to standards used rarely. Why do these differences matter, in terms of adoption of the pro codes act as written, and how could it be written differently to accommodate your concerns?
Speaker 8
So the pro codes act, again, is blind as to the type of standard that is being incorporated by reference. And the incorporation is not done with our permission. Right? It's just done by governments anywhere.
Speaker 8
With different models, it may work. Right? The my issue is it doesn't work for my organization. Why? Because, well, let me explain to you a little bit about the code business.
Not every one of our codes makes money. As a matter of fact, the vast majority, overwhelming majority, don't. There's a handful that do. And if I have 90,000 governments out there deciding what needs to go out in the public domain and what doesn't, I could lose my entire royalties.
Speaker 2
Okay. Thank you. A standards developing organization's primary function is to create uniformity across producers, consumers, government agencies, and other relevant parties concerning a product's specifications and protocols. These groups perform this coordination to ensure that products may be used and perform according to their intended purposes. Mister Paulie, I'm interested in how a standard is developed from inception through adoption, who participates in that process, and how are the participants in the process selected?
Speaker 5
Thank you, ranking member Johnson, for that question. Let me start a little bit. I've been involved in the standards process for a really long time, so I'll try to compress it and be as brief as I can in the explanation. Standards generally have to come from an idea. In NFPA's case, it has unfortunately often been on the backs of tragedies that standards have been developed because of some event or some occurrence, and we recognize the need for a standard to be able to put in place.
One of the examples I'd like to use for you in this is a standard we are working on right now called NFPA 800, the battery safety code. I don't think I have to tell this committee about issues that have been seen with lithium ion batteries, batteries used throughout our entire society. We published out that we were gonna produce this code, and we received public comments back from people that would say this is a good idea. It's not a good idea. I would like to serve on the committee.
We take all of that input in. We draft a scope for that particular standard, and then we begin to assemble the committee. What's very important in what we do in this process, as governed by the rules of our own rules and the rules of the American National Standards Institute that accredit standards developers, is open, transparent, and consensus based. So what we look for are people that have an interest in the topic and that can bring expertise to the table, but we create a balanced committee. And so that battery committee can consist of manufacturers, of insurers, of designers, of installer maintainers of those systems.
The list can go, we have about 9 different classifications. What's a very important part of this process is, in our case, no more than one third of an interest can make up the committee, but two thirds of that committee have to agree before you can actually add something or agree to the standard. So we've created this balanced, transparent process. From there, the draft of that standard can be put out for public review, and it takes public input. This document that I have in front of me, the National Electrical Code, every three years gets about 5,000 public inputs for changes to this document.
The committee operates on every one of those. They have to address every one of those inputs that come in. They may.
Speaker 5
That is exactly what drives revisions and updates. We will update this document every three years, regardless of what is happening from the standpoint of whether government is using it or not, or whether it's incorporated by reference. What's important also, not only do they address all those inputs, that result goes back out transparently for public review. And in this document, about 5,000 public comments come in. Those get addressed by the committee, voted on, and balloted.
That result gets produced, and, ultimately, the standard finishes our process by going through the final steps. What's also very important in this process is we have to operate an appeals process. There has to be an appeals mechanism where somebody can say, we believe I was treated unfairly. We have an entire appeals body that does that.
Speaker 5
I'll finish by answering your last question. The group that appoints the members of that committee is not NFPA staff. We have a group called our standards council that is made up of 13 voluntary members. They are from various walks of industry. That council is responsible for the appointments on the committee to ensure that we have open and balanced inside of that process.
Speaker 1
Thank you. Gentleman yields back. We now go to the general lady from Florida. Miss Lee.
Speaker 10
Thank you, Mr. Chairman. Codes and standards are around us everywhere, from the buildings we live in to the systems that keep us safe. And for decades, The United States has relied on successful public-private partnership where expert standards are developed by private organizations and then incorporated into law. But as we're hearing today, that system is under strain. Courts are sending mixed signals about whether those standards retain copyright protection once incorporated by reference, creating uncertainty that risks undermining both public access and the incentives that are needed to develop high-quality standards.
At the same time, we cannot lose sight of the core principle that Americans should be able to access and understand the laws that govern them. So today, I know we work to try to strike the right balance between protecting innovation and public safety, while ensuring meaningful access. I appreciate very much the chairman for convening this hearing, and all of you for helping us with this important and complex discussion. Mister Cooper Smith, I'd like to start with you. One of the things you mentioned earlier was that recent court decisions have created uncertainty around whether standards incorporated by reference remain protected, and that courts have developed some inconsistent rulings.
Could you tell us a bit about what some courts are getting wrong, in your view?
Speaker 7
Yes. Thank you very much. So, I work in all different areas of copyright. I can tell you this particular area is more chaotic than any other. In terms of when the courts take on issues relating to copyrightability or fair use, there are directly conflicting decisions on copyrightability, unfair use throughout the country in different circuits.
On copyrightability, we have differences between the second circuit and the ninth circuit agree. We have a bunch of courts that it is copyrightable. We have courts in the third circuit, I think the eastern district of Missouri, DC circuit, which either ambiguous or silent on the copyrightability issue. And then we have the vet case of the fifth circuit, which was decided about 25 years ago. In about a quarter century, no other court outside of the fifth circuit has decided to adapt that rationale and say, look.
These codes and standards lose their copyrightability. On fair use, we have a similar challenge. Right? The Supreme Court came out with this big, very important case in May 2023. I think it was the war, any war, Warhol case, Warhol Foundation case.
And in that case, it set standards for how the first factor of fair use should be interpreted. Since that case came out, we now have two separate cases, both saying completely opposite things on fair use. So that's why, ultimately, we're here. We're here because we need some clarity. We need to understand there needs to be a compromise.
There needs to be balanced. We realize that not everyone is going to be happy. We have extreme views sitting here on one end of the table. We have someone who doesn't want any copyright protection at all. The other one is kind of ignoring all these cases that are threatening us.
We need to find a compromise. We need to find a balance. I think the pro codes does a good step in that right direction.
Speaker 10
And a related question. One of the things too that you mentioned was that this was an area where Congress needed to step in, and needed to do so, I believe, more imminently. Would you explain why you believe congressional action is important, rather than allowing that case law to continue to develop?
Speaker 7
Well, it's not just me that thinks that way. We've had at least three courts in different jurisdictions say, Congress, please help us out here. Right? They've said in the actual decision, we in absence of congressional direction here, we're gonna do our best to try to figure this out, and they're not doing a good job. There's a lot of uneven, inconsistent decisions.
And what's going to happen is those decisions aren't going to hurt just SEOs. They're gonna hurt and be applied in other copyright context and hurt. So, really, this is a type of issue that congress has in the past jumped in and legislated on, and it would be appropriate, very, very appropriate, for congress to jump in and legislate here as well.
Speaker 1
Thank you. I'll follow up on that with mister Delivery. If we made changes, and, you know, we've been negotiating with your organization to try to find common ground, and, yes, you as we could tell by your opening it, we didn't find it. But, if we said, for example, that only if you give consent to be included by reference, then this would act. Would that be acceptable to you?
And if not, why not? In other words, you often say that you don't, so you don't try to get included by reference. But when you do, you don't sue them and say, how dare you include my copyrighted? Please don't. So the question is, on those occasions in which you are to be included by reference, would you agree that if in fact you consent to it, you sign on to this bill, if you openly reject it and try not to, that you would, in that case of notice, not give up your right and have to post it.
Speaker 8
I'd like to first, just add one thing that our process that is almost identical, jot for jot, with Mister Pauli's process. So I don't wanna bore the committee with the same testimony again. Okay.
Speaker 1
We do appreciate the work that all your organizations do. That is not the conundrum we face here today.
Speaker 8
Understood. I think we're only going halfway. So, yes, a fundamental problem is the mandatory posting. Absolutely. And that would go a long way to getting where we need to go.
But I'm actually interested in some of the statements that were made today about inconsistent court cases and inconsistent results. There are always inconsistent results in court cases, but the courts have consistently used fair use to decide the issue. Now fair use is a case-by-case decision. Right? And it's based upon the standard, the use, the infringer, and all the rest.
So it's not surprising that you're gonna have different results applying the same rule. So I would say I'm not ignoring the law, and one of the problems that I have had since day one with the pro codes act is it's not addressing the fundamental doctrine that the courts are using to decide this issue, that's fair use. So, you know, understand that fair use, in order for fair use even to be invoked as a defense, which is what it is, you have to have a copyright violation, which means you had a valid copyright to begin with. So the Pro Codes Act doesn't go anywhere near protecting copyright. It just restates the predicate that you need for fair use to be actionable, or to be invoked by a defendant.
Speaker 1
To be continued. We now go to the gentlelady from California, Miss Laughlin.
Speaker 11
Thank you, Mr. Chairman. You know, for a lot of years, I have been involved in this issue to protect access to the law. I've filed amicus briefs in cases where SDOs sued public resources org for posting legal standards online. And as you've mentioned, sir, the courts have consistently defeated the idea that you can copyright protection under the law, that there's fair use. In fact, in 2023, in the ASTME versus PRO, the circuit twice held that the noncommercial dissemination of such standards as incorporated by representative law are fair use.
The cert circuit in 2026 found the same thing. The Supreme Court in Georgia v. Pro found that this is fair use. Justice Robert said no one can own the law. Justice Thomas said statutes and regulations cannot be copyrighted. And so I think the law is clear.
I just think, mister Brandon, in the amicus brief, an ASME versus public resources, the NAACP noted that, and this is a quote, without the information contained within the technical standards at issue, black and low-income communities are fighting blind against landlords and other powerful well-resourced adversaries. For these communities, access to the standards is access to justice. So does this bill create a two-tiered system where some people get limited access to the law and those who pay can get better access?
Speaker 9
Yes. Thank you for the question, Representative Lofgren. And, yes, it absolutely would create a two tier system, or at least a two tier system, because the reading rooms that the STOs have established and that this legislation would, in essence, bless, typically involve access that just doesn't make sense in 2026. The fact that these standards are or the standards, you can't download them. You can't cut and paste them, makes it much, much more difficult for it to use.
So just having a PDF online is really not accessed.
Speaker 11
So, really, tenants or homeowners or workers would not have the same access. Let me just move on to another issue. Mister, Poly, you mentioned that these reference standards don't really have legal effect, but I'd like Unano's consent to put into the record the fact sheet from NFPA, which says this: The code references various organization standards within their requirements. And once the code is implemented by the authority having jurisdiction, those reference standards are a legally enforceable part of the code. I'd ask unanimous consent.
Speaker 11
And I'd like to ask unanimous consent to put the amicus brief into the record.
Speaker 11
I'd just like to note there have been comments made about whether or not these standard-setting organizations can survive. But I just like to note since all of the cases have been lost in the courts, the financials are still going forward. I mean, ICC financials, their revenue in 2024 after they lost the court decisions was $100,000,000. NFPA, after they lost the court, the courts precluded what they're asking to change now, their revenue was $115,100,000. So I'd ask unanimous consent to put these financials into the record, mister.
Speaker 1
We, without objection, all nine nineties of all nonprofits be placed in.
Speaker 11
Right place. I just think, you know, it's not that we don't care about what the SDOs do. Obviously, we do. But what we care most about is upholding what the court found and what the public deserves, which is free and full complete access to the law that they're bound by. And I think the idea that we should charge people or impede access to what people are bound to live by is just inconsistent with due process and the American system of justice.
And I see my time has expired, Mr. Chairman, so I yield back.
Speaker 1
The gentleman yields back. We now go to the gentleman, Mr. Goodman, for five minutes.
Speaker 12
Mister Polly, could you touch on the last comment about the accessibility to the codes, PDF versus searchable, and how they wouldn't necessarily be accessible to all. I just wanna understand that because I hear that often.
Speaker 5
Thank you, Representative Goodin, for the question. So for NFPA, we have placed our codes and standards online for free access for coming on 20 years now. And by the way, just to be clear, we don't do that with just the standards that have been incorporated by reference. We do that with our entire library of standards, whether they have been incorporated by reference or not. We do believe that the transparency of access to this is important, but it's also a balance.
And so in the case of NFPA's free access model, you can go to our website. You can pick any of those 350 codes and standards. Click on the free access button. We ask for minimal information, typically an email address and so forth to get in. And you can read that entire standard, everything, from cover to cover.
It has a searchable table of contents. There's an index in the back for it to be used. It is not downloadable or printable or, in this case, either searchable at least by full text other than those things I mentioned. That's the balance that we're talking about in this case. The reason why that model has worked is because it allows people that want to have access to read the standard to have access.
The professionals that utilize the document, they subscribe or they buy a copy of the standard that it is that we're talking about. If I put, as was suggested, everything online completely for free, downloadable, or if a government did that on their website, why would anybody pay me for a copy of the standard? And suddenly, the funding model that has funded the entire standard system is now gone. So we believe the transparency and access to the standards is important, and we've been doing it with a two-decade track record that was brought up. We've been able to do that.
And yes, we are still in existence as an SDO in that process.
Speaker 12
And so if we fail to pass the pro codes act, how would you argue that that impacts the health and safety of Americans?
Speaker 5
Well, so I think what's most important about the pro codes act, I understand a lot was talked about the court cases, I am not a lawyer that's up here, in front of you. But what is at risk is the copyright protection that we have in place. If that copyright protection goes away, then the safety and health of Americans are affected because we can no longer produce the standard. I agree with Mr. Delavanari. Copyright is important to us.
By the way, I share the same thing that he does. A few of our standards actually generate the revenue. The vast majority of them do not. So what's important about the pro codes act from NFPA's perspective are two basic principles. It reinforces the fact that you don't lose copyright just because your standards are incorporated by reference, and it promotes transparency to the public of those particular elements.
And it, again, without it, I'll go back to my dam analogy. The courts are really putting cracks in the dam. And the problem with copyright is if the dam breaks, we lose the copyright. We can't come back from that. It's gone.
And that, I believe, is the reason why it's imperative that Congress act.
Speaker 1
Thank you. Mister Paul, I'm gonna follow up on that. Earlier, I quickly glanced at one of your books, and I asked you to keep track of that. And would you just briefly read it? I think it's on iron air storage related to electric EV station.
Speaker 5
Yes, mister chairman. This is out of NFPA 855, which is our standard for the installation of stationary energy storage systems. The particular section, hazard conditions for iron-air batteries under normal operating conditions are as follows. Fire hazards. There is potential for concentrations of hydrogen from iron air batteries in the area where batteries are located and is not properly.
Speaker 1
Without objection, I'm gonna consider that whole paragraph inserted in the record. Now, is any part of what you started reading a code, a law?
Speaker 5
I'd mister chairman, it is not the law. It is a set of elements that the committee has put forward.
Speaker 1
And so the guidance, the how to that I'll find in every one of these and thousands of other books, including Mister Delaverry's, companies or organizations, we're not talking just about statute. If in fact we only were these court cases, if they were only dealing with a very narrow gobbledygook that we see in US 35 blah blah blah, it wouldn't tell you how to do it. It wouldn't tell you some of the concerns. It wouldn't educate you the way your books and standards books do for all of you, from what I understand. Is that correct?
Speaker 1
Okay. So I'm just gonna yield back by the time I was so nicely granted by making the point that mister dela Delivery made, which I agree with, which is one of the problems here is that what's being referred to as a law is only a small part of the documents that all of your organizations are producing. And with that, I would go to the gentle lady, Miss Ross, for her five minutes.
Speaker 6
Thank you, mister chairman, and I want to thank the ranking member for letting me go before he does. So I'm thrilled that we're having this conversation, and that we have the whole range of opinions about how to solve this problem. But the fact of the matter is, it is a problem. It may not be a problem in certain areas where, you know, certain jurisdictions where both the people who make the codes and the people who wanna create the access have come to some agreement. And I thought it was very interesting that Mister Band actually talked about the concept of a license.
We talk about that a lot. But what I'm seeing here is that there are two things going on. One is a fundamental tension that we've always had in our law, and the second is a looming problem. So this fundamental tension that I'm seeing, and I served on the Uniform Codes Committee in the North Carolina General Assembly for many years. People thought, you know, it was the most boring committee.
I actually thought it was very interesting to see all the work that goes into producing these independent codes. Well, of course, the North Carolina General Assembly wanted to adopt some of these codes and not do the work itself. But a good thing about doing that is, you know, the lobbyists don't get involved. The industry doesn't get involved. You really get a better, more scientific, more truthful way of doing it.
But when a government takes property even for the public good, which is a taking under the fifth amendment, they compensate the landowner. So if the general assembly in North Carolina wants to build a highway and they wanna take somebody's front yard, they pay fair market value or fair value for it because there's a public good, because they recognize that property right. Copyright is a property right. It's a temporal copyright. It has an expiration date, but it is a property right.
And for that reason, I think a really easy way to resolve this, but nobody seems to wanna do it, is to actually pay people like you paid them when you take their front yard for a highway. And then their license fees, they don't even have to be big license fees, just enough to support this. But nobody wants to pay. They wanna hide behind fair use. I love fair use.
I was a professor. I use fair use all the time. When I taught my students, I did copies of things. I taught the law. We went out and did it.
I told you, no? However, to really get good access to the law, you actually had to pay, by the way, Lexis or somebody else. But when you are going to say that fair use covers something that can be further monetized, like what we see with Upcodes, then that is not fair use anymore. That is taking the industry of somebody who has copyright protection, using everything that the wonderful libraries are talking about for your own benefit and monetizing it. That is exactly what is going on right now with AI.
What is going on with AI is they're saying, oh, there's a public good for us to use newspapers and artists' work, and we shouldn't have to pay for that because we're doing so much, and AI is so wonderful. Well, AI is wonderful when it produces a public good. But when you're gonna make money off it, no can do. And that's why Anthropic lost its lawsuit. So what we're doing here is trying to have that balance, trying to provide people in libraries, people who need information, with information, but also compensate people for their industry.
So I wanna turn to mister Kuberspick because he does represent people in a broader way and ask him whether I'm seeing this in a reasonable way and whether expanding the fair use doctrine is a further threat to copyright.
Speaker 7
Yeah. So as you were speaking, I was just thinking, sort of nodding in agreement with everything you said because I think your approach to the issue and your statements are spot on in terms of this is about balancing. And if you don't have the correct balance, you may see the STOs disappear or a real threat to their industry for certain. And so I think that is something that is very significant. The AI issues you mentioned, I mean, that's obviously we're in agreement there.
We hope the courts agree with what you just said as well, and come out on that. But, yeah, I mean, we're big supporters of fair use. There's nothing that's sort of categorically fair use one way or the other. And so I think there certainly will be instances where using codes and standards will be fair use, and other instances where it should not, certainly should not be fair use.
Speaker 1
I thank the gentlelady. We now recognize the gentleman from California, Mr. Kiley.
Speaker 13
Thank you, Mr. Chair. Thank you for convening this hearing and for this legislation. I think there are a few questions that, you know, we need to consider at a higher level here. Number one is do we want to do something or nothing, as a congress, in the face of the courts handling this matter in a way that has created uncertainty? I think the clear answer is we want to do something, to produce some level of certainty.
Second question is whether we want to empower or weaken the process of standard setting, which has served to tame the complexity of modern life and allow coordination to triumph over chaos. I think the clear answer is that we want to strengthen that process. And number three is do we want to strengthen or weaken the voluntary associations that have allowed the process of standard setting to play out with a broad range of expertise that would be very hard to replicate through some government-engineered process. And I think that, again, the answer is that we want to empower those organizations. So, you know, with that in view, I think that we have a pretty clear set of goals here, the question just is how do we strike the balance.
And I think that, you know, this legislation is aiming to do that. Perhaps it could use a little more refinement. I think that's why we're having this hearing. But just to follow up on the chair's questions a little bit, mister Polly. So when you incorporate by reference, you're incorporating the standard, but the work product of the standard-setting organization encompasses commentary, drawings, illustrations, prefaces, everything else.
So there is that distinction. Right?
Speaker 13
Well, so if a standard is incorporated by reference, the only thing that's sort of part of the, you know, the public body of law then is the standard itself. It's not all the supplementary materials that your organization produces.
Speaker 5
Well, I'd I would agree with you. I think there has been, this is part of the issue, I believe, and the lawyers on the panel can help me. I think the problem with some of the courts is they have taken along even some of the supplementary information that's in the standard and included that to say it's the entire standard.
Speaker 5
And that is indeed one of the challenges, and I think one of the points that was made along the path at saying there's a lot of what we refer to in the standards world as annex material, which is important material to have, but not necessary to apply the rules of the standard itself. But I think the courts have taken this thing in great or in whole, if you will, which again is why I believe it really begs for a policy question for Congress to really deal with.
Speaker 13
Yeah. Do you think and I'll take your opinion on this as well, Kupper Schmidt. The this bill, as we've written it, makes that distinction in the right way. I mean, let's forget standards for a second. You can look at the US code, the code of federal regulations.
There's a lot there that, you know, wouldn't make a lot of sense if you just kinda read it. The language of the law itself, it's cross referencing this section and that section. So, you know, there's all kinds of materials that exist that help people interpret and give them advice on that that aren't necessarily part of the law itself. So are we creating the right distinction here?
Speaker 5
Well, I do believe that pro codes does strike the right balance between these things if we can ensure that the copyright is protected overall. The access part of this, of whatever it is that you wanna try to call the standard, I think, is an important piece of the transparency that we've talked about. What would result, if I understand your question correctly, would be trying to separate those two pieces out into separate elements. I think I don't wanna speak for my standards committees, but I think what the standards committees would say on top of that is we've tried to assemble something that's useful for the people who professionally use the standard. And I don't think our standards committees are not thinking about this in terms of public access or anything else.
That's something we as the organization have to be able to do. So does Pro Code strike the right balance between those? I suspect there are all flavors of that. What's not clear to me is how you would bifurcate those pieces with all of the variations that are out there.
Speaker 7
Yeah. I agree with mister Paulie. I think when you're talking about balancing these interests, there's definitely different ways to
Speaker 7
We are on record in the testimony. I mentioned the fact that maybe it's better to instead of attaching to copyright or kind of tying public accessibility to copyright protection, to copyright enforcement instead. Right? And that might, it might address some of the copyright infringement cases that are coming out recently. Perhaps that's a way to do it.
Maybe there's additional tweaks or something to the bill that can be made. But, ultimately, I think congress is gonna have to realize not everyone is gonna be happy here. This is about compromise and, you know, and trying to address individual interests and balance those interests. I think the pro codes act, you know, coming out of the gate is a very good approach. Could it be better?
Sure. I'm sure that it could be tweaked this way and that way, and it should be, but very supportive of the framework established by the pro codes act.
Speaker 1
Thank you, gentlemen. We now go to the distinguished ranking member of the full committee, the gentleman from Maryland.
Speaker 4
Mister chairman, thank you very much. And please bear with me, because I'm really just trying to figure this thing out. This is complicated. Okay? So my first question, and I'm not even sure who it's directed to, is why do the government bodies not actually embody the standards explicitly in the codes, rather than incorporate them by reference?
I don't know. Yeah, Mister Ben.
Speaker 9
So, again, that is, I think, a historical legacy from the print days. Remember when we used to have to go to the physical libraries to do all of our research, and nothing was online? And printing. Okay.
Speaker 4
Has anybody ever challenged a legislative incorporation by reference? I know we use it when we file a complaint. But has anybody ever said that's not the law? And along those lines, if somebody updates their code, does that need to go back to the legislative body, or is that just automatically incorporated by reference, mister Pali?
Speaker 5
So if I could, generally, when an incorporation by reference is done, it is usually done by standard and by the addition of the standard that is particularly stated. So in the case I'm holding up the National Electrical Code, this is the 2026 edition. They would normally say, we're gonna incorporate by reference the 2020 edition of the National Electrical Code. So my understanding is in the vast majority of cases, it would go back to the legislature for whatever the next update would be at some point in time.
Speaker 4
Come back to you. Let's just pursue mister Pauly for one second. So you, when you described how your system works, and I think you said it's pretty much the same with the, you know, you've got the two-thirds requirement. You try to bring in all the different players, and so on. That sounds kinda like a public process where you've got your own rules and regulations.
And then this legislation makes it even more public. It essentially says that we're gonna allow people to incorporate by reference. We're gonna make it the law. We're gonna grant you the continuance of your copyright protection as long as you put it up online. Is that basically right?
Speaker 5
Yeah. I think you've basically described that as correct. It is certainly more transparent access. And has this.
Speaker 4
Ever been challenged as a delegation of public power to a private entity? I mean, has the constitutionality of this been upheld?
Speaker 8
Well, you know, certainly, it depends on the code, and that's why I've been raising these distinctions. Right? So, for example, if you wanna go to the New Jersey electrical code, you can't find it. There's no posting on the New Jersey.
Speaker 8
This reference. Says go to their website, essentially. Okay? So it really depends. Like, so that is the law.
Jot for jot, word for word. Right. Electrical code.
Speaker 4
Alright. Are your concerns assuaged by either of these two things? One is you've got the right to opt out of this. I mean, I can see you don't like being compelled to put your stuff up online just because a third party, a legislature, a city council, or something incorporates by reference your work. You have no control over that.
And then suddenly, you're compelled to put your stuff online in order to protect your copyright. So are you okay with this, one, if you're allowed to opt out, or two, if there's simply a statement that your copyright rights are unaffected by this? That is, they're neither impaired nor increased. It's just neutral. It's what the status quo ante was.
Speaker 8
Well, I would say that your question assumes that this isn't the right solution for everyone, and this should be a solution for everyone.
Speaker 4
Well, that's what I'm asking. How do you make it a solution for everyone?
Speaker 8
Well, you write a different law. Right? What does it mean? My solution is that we're gonna have to take a look at fair use. We're gonna have to look at those factors.
We're gonna have to give some guidance to the court. But I also want to, if
Speaker 8
Do it in such a way to help the court get to perhaps different decisions. But I also, there's another couple of issues here that I
Speaker 4
Well, do you disagree with mister Band that it's obviously fair use when people access what's been defined as law in a particular jurisdiction. That's got to be fair use. Right? And that's what the courts are saying, as I understand.
Speaker 8
Well, you know, and that's really sort of an interesting question. Okay? So first of all, the way that people use standards is to read them. Right? And to miss Ross' point, AI, forcing people to put their standards on the web under the anthropic decision, gives the anthropic agent the ability to read it and exposes us to all kinds of AI dangers.
Right? So in certain respects, this bill goes in the wrong direction with respect to AI, number one. Okay? And then, you know, second of all, think back, think about the precept here. Everybody wants the public to have access to laws that govern them.
Right? But the act that makes people compelled to follow the laws is the act of the sovereign. What this bill basically says, the sovereign has a duty to give fair notice to its citizens, and it's really saying, oh, and by the way, we're not going to pay for that. We're gonna compel the SDO, the private SDO, to finance it through perhaps the loss of their standards. So if you think about it, who has that fair notice requirement?
It's the state. You're now under this bill, saying, okay. Now you're ASME. You foot the bill. You lose the sale of your stands.
So there are really prop, there's real problems with the way that this bill is approaching it.
Speaker 4
Gotcha. Mister chairman, I wanna yield back. I am afraid I cut off Mister Kupfer Schmidt on maybe.
Speaker 7
Yeah. I'll just say real quickly that under fair use analysis, court should look at has the SEO made it available themselves. Right? Has it is publicly accessible already, the standard? And if it is, that should work against fair use.
The problem is the courts don't really understand that or aren't using that.
Speaker 12
Thank you, mister chairman, for having this hearing today. Mister Pauli, if Congress passes this act, in what ways would this be beneficial to the health and safety of our citizens? I think we should, I think we're mired in kind of an exercise in intellectual property and kind of nuanced legal issues. But for people watching back home, or who may be tuning in, what is, what is the practical effect for them?
Speaker 5
Well, look. Thank you for the question. I think the practical effect, representative Fry, is that over this past century, we have shown that private sector standards development, those independent standards bodies, have produced standards that have been beneficial to the public. Whether you wanna look at it in the fire numbers that I quoted earlier and those reductions, or whether you wanna look at it from across the spectrum of standards that people interact with every day, interoperability, safety standards, whatever those may be. The reason why we're sitting here today, and I'd like to really reiterate this point, nobody that has been involved along this process, the court cases and otherwise, has argued I don't have access to the standard as an individual that I need to access it.
We're here because commercial actors want to take the intellectual property that has been developed by folks like NFPA and others, and they want to use it for their purposes to generate revenue. That's why the court cases exist today. They're not here because we've had some access problems along the way with this. And I think that's an important point to remember because if those commercial actors can take mine or any other n s t STO's intellectual property and use it the way that they want and make it fully available, I'm not going to survive. I think I can certainly speak for NFPA, but obviously, I'm biased.
But for a lot of other SDOs that deal with it as well, I think the public suffers if the private sector SDO community ends up going away in this process. And that is the reason why I think this is such a policy issue for Congress.
Speaker 12
Pivot a little bit. Talk about the code and standard development process that y'all have and maybe some of the associated costs that are involved in that. Yeah. So.
Speaker 5
All of our costs, when we look at the vast majority of what cost we have, is an FPA, and you can look at our revenue, you can look at our expenses across that entire spectrum, the vast majority of those costs are involved with that development and that distribution of those standards in some particular manner. I think for a lot of people, they think of it in terms of, hey. Look. Isn't somebody just gotta put the words on a piece of paper? But no, I have to have engineers that staff all of those technical committees.
I have to have IT groups that have the systems in place to do this. So there is a cost every time we develop those standards. And I would reiterate, out of the 350 or so codes.
Speaker 5
Yeah. You are correct. It is not free. These are the costs that we incur every day, and they're important. We think they're important for society, but we are self-funded.
So if we're not generating revenue, I can't pay the bills.
Speaker 12
Let me ask you something. We've been told that if we pass this, it'll create a system in which special interest lobbyists would have an effective veto over the health and safety standards in the country. Is this accurate?
Speaker 5
No. It's not accurate at all. And I think I go back to the process that is so critical under the guise of open, transparent, and consensus-based processes. We put those processes in place, and we run those committees to keep special interest from having a sway over that particular committee. Earlier I mentioned, if you just want it in round numbers, in NFPA's case, no more than a third of the committee can be made up of an interest, and it takes two-thirds of the committee to actually change the document.
So the beauty of what we do is we bring people to the table to have debate.
Speaker 12
Can you imagine doing that in Congress? My gosh. Two thirds on anything. I don't know if we could do that. If the pro codes act was enacted, what steps would y'all take to make sure that the codes and standards are accessible to the public?
Speaker 5
Well, I look. I think this is probably in one case where NFPA probably has a little bit of an advantage only because we've been making all of our codes and standards, not just those IVRed, but all of our codes and standards available online for full public access for free for the last twenty years. So, you know, for us, we're trying to continue along down the path. I do think what our track record shows is that there is a way to do this, make public access available, and not suffer the loss of revenue, because professionals still purchase the document or purchase a subscription. And I just reiterate, that's the beauty of this process.
It's not taxpayer dollars that are funding it. It's not big industry dollars that are funding it. The cost of the system is spread out across the people that actually use the standards in their work every day. It's a beautiful public-private partnership in action.
Speaker 12
Thank you for that, Mr. Chairman. I see my time is up. I yield back. Thank.
Speaker 1
you. And that just leaves me now to close this thing up. And I'm gonna try and bring together as much as I can, as quickly as I can. And I appreciate, mister Pali, your organization's posting online. But as you can tell by mister Delaveri, he posts online, but not the same way.
This is not open and free. So there are multiple models at work here. But, mister Band, you haven't got enough attention. So I'm gonna ask you, do you think Napster was fair use? No.
Okay. So fair use has its limits. Right?
Speaker 1
Okay. And, when somebody monetizes somebody else's copyrighted material, that's not fair use.
Speaker 1
Well, in the case of the two that are monetizing it now, they both have a form of monetizing in their formula. They're not giving it away without either collecting data or actually charging a subscription fee. Isn't that correct?
Speaker 1
They collected 11,000,000 in a round of money. They have a subscription model and a premium subscription model to provide other people's material.
Speaker 9
But to some extent, that's something that, you know, the standards bodies could do themselves. And indeed, wait. Wait. Wait.
Speaker 1
Wait. A second. Wait a second. They do it themselves. They have subscription models.
They have programs. I'll go back to Napster. You know, in Napster, the recording industry didn't have to prove they were going out of business, although they sometimes alleged that it would kill them. They only had to show a violation of the copyright.
Speaker 9
Right. But the difference here is we're talking about the law. No. Wait. Wait.
Wait.
Speaker 1
Wait. We already went through this in detail. You're a taxpayer, I assume. Yes. Have you ever read the tax code?
Speaker 1
You any idea what it would be like to try to comply with the law by only reading the tax code?
Speaker 1
Doesn't everybody read supplemental copyrighted material in order to comply with the tax code?
Speaker 1
And aren't these, as demonstrated at least briefly, in fact, supplemental materials as much as the law, that they are how-tos and they are teaching. And therefore, even if we were to narrowly say that, if you say that, Mr. Massey wasn't here today. But if you say that every three feet, there has to be a 110-volt plug in order to comply with the law in some jurisdiction, even if you say that, the rest of it is not in fact the law,
Speaker 9
Is it? It's how to. I think that as a general matter, that's right. And that's why, you know, when, mister Polley holds up that book, I don't think certainly not my view and the view of my clients is, you know, that the whole book is not the law and therefore would not be freely available. And that's also the advantage of That is one of the
Speaker 1
Problems with the two that are monetizing it in lawsuits is they are monetizing the entire code, including the how-to. They're not they're not clawing through it.
Speaker 1
So in the case of pro codes, how do we define that in a way that provides guidance to the courts? And this is really for you and mister Delavere Delavanity. We are here trying to pass a law that, one, gives a safe haven to people who want to get access to information, and provides clear guidance to the court. So got two proponents, and I've got two non-proponents. One, to be honest, oops.
One on the right of it, and one on the left of it. You are not in agreement. You simply would like more than we are doing. My question to you and the question that this dais needs as we go into our markup is, how do we preserve the copyright, which everyone is pretty well agreed, exists within these manuals even if small portions are, quote, the law. How do we preserve that and provide guidance to the court so they make consistent decisions, particularly as to this misguided interpretation of fair use, which I think I got your point that it depends.
A lot of these cases, when Mister Pauly's stuff is online already and then somebody monetizes a copy of it, where did the fair use get into that? They were simply duplicating and providing for the revenue what he's already doing. And maybe they're making it machine searchable, but, of course, that just means they're making it easy to take copyrighted material, isn't it?
Speaker 9
Well, the solution that I offered will really take care of your concern. In other words, if, let's say, the congress said that incorporated by directly incorporated instead of incorporate by reference, then whatever was directly incorporated, that's the law, and whatever is not incorporated directly is not the law. And I agree with you. Very clear distinction.
Speaker 1
You know, for the other three that are actually putting stuff out to these municipalities, states, and so on, do you see them actually, if you give them, quote, statute portion of it, do you see them actually doing it? And wouldn't it be economically burdensome for them to do so?
Speaker 1
Basically, what you're suggesting is that they take subsets of every one of these 45,000 different books and manuals and put them online and, of course, also print books and so on. That's what you're suggesting in order to comply?
Speaker 1
Right. But and mister Delivery, our suggestion that, in fact, a PDF be printable, not full machine searchable, AI advance, get everything you want, and have it tell you how to write an application for a permit. But because I know that's a concern of you that these codes can be turned into AI producing an entire permit and bypassing everybody, and with dubious accuracy. Where is the middle ground? Because for the ranking member who's left and for the ranking member of the subcommittee, we need to know we cannot, inaction is a problem.
It's a big problem here because of those cases. So we're going forward with action. Mister Pauli, I will commend that two-thirds is hard to get to. We got within one vote of it last congress.
Speaker 8
Miss Josh, could I help? I mean, you please. Ask that question. So I think there are ways to deal with fair use in a relatively light manner. Right?
Because folks, you know, that turns into a, you know, a real issue. Right? And the first, for example, there's been holding in the cases that when somebody reads a standard to comply with the law or somebody reads a standard to comply with the, you know, to use it in manufacturing, that suddenly that same standard is transformed. Right? They say that it's transformative.
Everybody reads a standard to comply with it. Right? So one thing the committee might wanna think about is when you're looking at whether or not it's trans it’s transformative. Right? So that's one approach, right, to have the courts go in a slightly different way.
There's another line of cases, and I disagree with mister Kuber Schmidt, in a case in the Fifth Circuit, which was an en banc decision called VEC, but then recently followed in a case called CSA versus Knight, I think, in 2024, where the court is making a more in-depth analysis, right, of, you know, what kind of standard is it? How is it going to be used? Is this a law of general application, or is this a law that governs nuclear, you know, facilities? Right? So there are fragments in the case law that help this committee.
And there's also if you look at the case law, you know, there are certain doctrines that are now being built into fair use that has extended beyond its traditional, you know, parody, news reporting type of things. It's turned into quite a different animal in the case law. And putting some bumpers on those fair use, I think, the right way to do it, but it still allows the court to make a decision, a just decision based on specific facts.
Speaker 1
I appreciate that. And as I close, I'll simply say that, we, the bill is going to be amended as we bring it to the committee. There will be an amendment in the form of a substitute. Many of you have given us input that we expect to already be in. I would say that I would commend you all to engage and re-engage if you have additional ideas.
I will say this in closing. If I had my way and I could speak to Chief Justice Roberts and he could speak to 677 district court judges, I would ask them to find fair use when somebody uses the information wherever gleaned from for purposes of compliance for themselves and to, in fact, not consider it fair use when it is reprinted for a monetization or some other use other than the historic, truly educational uses that often happen as Miss Ross said. Now I don't get to meet with the chief justice more than once a quarter. And when I do, Mr. Johnson and I are very brief. So, I don't expect to do it except through this upcoming law, and I would ask all of you to help us make that bill, which is the one we're talking about, and we'll get across the finish line by two-thirds, make it as good as we possibly can, and meet compromises that do not compromise the concerns that we heard here today.
Oh, and then as sometimes happens, I have a few UCs. I ask unanimous consent that the draft bill or the bill HR 4072 be placed in the record for everyone. I then ask, pardon me?
Speaker 1
support. Then, additionally, I have letters of support from another large group of organizations. The first, and I will not read them all, is the IEEE, and I'd ask all of those to be placed in the record without objections. So ordered. And lastly, to be brief, I would also include the subscription information on Upcodes and how they do, in fact, find a way to monetize that, which is already, in the case of Mr. Pauli, freely given away. Additionally, as we close, all members may have five legislative days in which to include additional information.
I would extend that to all of our witnesses, that they may also do it. And I lastly ask, if you receive within five legislative days additional questions, would you agree to answer them for the record? All those responded in the affirmative. With that, the committee subcommittee stands adjourned.
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