Protect American Safety Standards:
Stop the Pro Codes Act

The Pro Codes Act has been described by advocates as protecting the copyright interests of Standards Development Organizations (SDOs). However, the bill does not support all standards organizations and would severely impact SDOs like the American Society of Mechanical Engineers (ASME) and others that create standards for the private sector.

As written, the Pro Codes Act would force ASME and others to post their intellectual property in the form of standards on the web for free if any part of a standard is incorporated by reference into law by a federal, state, or local government. If the SDO does not comply, the penalty is loss of copyright.

Standards Development Organizations (SDOs) are typically private or non-profit entities responsible for developing voluntary consensus standards within specific industries or sectors. SDOs like ASME do not receive funding from the government or from industry to support their standards setting activities. Instead, they rely upon their copyright, funding their mission through the sale of their standards.

The development of ASME standards are open to all who are interested in participating without fee. ASME uses a balance of interest process that includes industry experts, government regulators, inspectors, insurers, and others interested stakeholders to inform our standards development. This ensures that no one interest group dominates the standards setting process. Standards developed by SDOs like ASME are voluntary technical documents that only become mandatory if a legislature or regulatory body by passage of law or regulation decides to make it so.

Yes! Some SDOs draft standards that are specifically intended to be incorporated into laws and regulations for an entire subject matter. Oftentimes these works will include references to standards written by others. For the most part, these are local health and safety codes broadly applicable to many stakeholders, often including ordinary consumers. These SDOs lobby state and local legislatures to adopt their standards that often amount to an entire regulatory framework.

The majority of SDOs, ASME included, DO NOT lobby for their standards to be incorporated in this way. For this majority of SDOs and their standards, incorporation by reference is often no more than a bare citation to a standard in an extrinsic law or regulation. These standards very often have no application to ordinary consumers and address highly complex engineering issues such as the construction of nuclear power plants.

The core support for the Pro Codes Act comes from those that write consumer facing standards that wish to have their works adopted wholesale as an entire regulatory framework

Yes. The Pro Codes Act is an unconstitutional government taking of intellectual property rights from entities like ASME and other SDOs that do not lobby for their standards to be incorporated into law. More importantly, because a mere citation is not copyright infringement, SDOs like ASME are incapable of preventing citation by a governmental agency into laws or regulations. Thus, by a federal, state, local, or municipal government doing no more than making a simple citation to a standard, the bill would force SDOs to publish their cited, copyrighted standards on the web for free, granting every citizen or non-citizen individual or business an unencumbered right to the entire publication.

The Pro Codes Act would force ASME and other SDOs to make standards available for free online. Members of Congress who support intellectual property have repeatedly gone on record opposing forced tech transfers, most recently in response to an Administration proposal for expanded march-in rights.

The loss of American SDOs on the world stage will leave American standards creation in the hands of governmentally run standards bodies in China, Russia, and the European Union. And everyone – no matter who you are – should be gravely concerned about the potential impacts on American public safety and national security.

Because most SDOs are completely reliant upon the copyrights of their standards to produce the income necessary to draft and maintain their codes, a blind mandate that all standards incorporated by reference be made available for free will have a devastating effect on SDOs and their ability to carry out their missions. The only choice the Pro Codes Act gives an SDO after a governmental authority chooses to adopt its standard is the slow death of ever decreasing revenue once its standards are put in the public domain and are exploited by opportunistic third parties or an immediate death upon total loss of their copyright.

The Pro Codes Act was marked up and moved through the House Judiciary Committee without a hearing or an opportunity for SDOs such as ASME and others to express their concerns. This is reckless for a bill of this magnitude. The Pro Codes Act is a major alteration to copyright law and represents a federal taking of intellectual property rights.

The Pro Codes Act is not what it claims to be and does not have the unified support of the SDOs that America relies on for its safety and security.