Why It Matters

Courts have not reached a definitive consensus on whether privately developed technical standards retain copyright protection after being incorporated by reference into law, leaving the legal status of public access to such standards unsettled, according to a new Congressional Research Service (CRS) report. ​

The report covers fire codes, building standards, and similar privately written technical rules that governments adopt as legally binding requirements, framing the core tension as a conflict between funding incentives for standards-developing organizations and the public's ability to access material that carries the force of law.

Congress has tried to resolve that tension legislatively. The Pro Codes Act would confirm copyright protection for standards incorporated by reference into law while requiring free online access, but the bill failed on the House floor in the 118th Congress, and related House legislation remains in committee in the 119th.

The Big Picture

Federal policy generally encourages agencies to use privately developed voluntary consensus standards, and federal regulations require that standards incorporated into federal rules be reasonably available to interested parties. Standards-developing organizations argue that copyright protection funds the expert-driven consensus process; public-access groups counter that standards incorporated by reference lose protection once adopted as law, or that posting them online constitutes fair use.

Federal appeals courts have differed on the core question. The First Circuit in BOCA suggested, without ruling definitively, that an adopted code was freely available for copying, while the Fifth Circuit in Veeck held that adopted codes enter the public domain. The Second and Ninth Circuits have held that government adoption does not automatically end copyright protection. The Supreme Court's 2020 decision in Georgia v. PRO held that annotations to Georgia's official code were not copyrightable, but the report notes that standards-developing organizations interpret that ruling narrowly because most incorporated-by-reference standards are written by private parties, not government officials.

Many post-2020 decisions have found that copying incorporated standards was justified, principally under fair use, though results "have not been uniform." In ASTM v. PRO, a district court found fair use for 184 of 217 standards, and the D.C. Circuit affirmed the ruling in 2023. In ASTM v. UpCodes, the Third Circuit concluded that the first fair-use factor favored UpCodes, at least at the preliminary stage of the litigation.

Rep. Darrell Issa (R-CA) sponsored the Pro Codes Act in both Congresses. The 118th Congress version, H.R. 1631, cleared the House Judiciary Committee but fell short of the two-thirds majority needed to pass under suspension of the rules on July 22, 2024. The House Judiciary Committee referred two 119th Congress versions, H.R. 4072 and H.R. 4009, in June 2025, and they have seen no further action. The report cautions that the Pro Codes Act "would not explicitly address the fair use issue or constitutional defenses," leaving open whether enactment would resolve the ongoing disputes.

The Bottom Line

The Senate read a related measure, S. 4145, twice and referred it to the Senate Judiciary Committee on March 19. With H.R. 4072 and H.R. 4009 referred to the House Judiciary Committee, Congress faces a trade-off between incentives for creating standards and public access to privately developed standards incorporated into law. The report identifies five options: maintaining the status quo, enacting the Pro Codes Act, strengthening copyright protection, placing incorporated-by-reference standards in the public domain, or creating statutory licenses.

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