The Pro Codes Act attempts to copyright the law. But is it constitutional?

Recently, the U.S. Congress has been debating H.R.1631, also known as the Pro Codes Act. The bill would allow standards development organizations (SDOs)—creators of building codes, fire codes, electrical codes, and the like—to copyright these codes even after they are incorporated into the law. This would give SDOs monopoly control over access to and distribution of the codes.

Advocates of the proposed legislation contend that the absence of copyright protection makes it economically infeasible for SDOs to develop and maintain such codes and could impede the continued deployment of important health and safety standards. Yet such assertions fail to address the likely unconstitutionality of the proposed legislation and the questionable premise that private ownership of the law is essential for SDOs to carry out their work. Nor do these arguments recognize the legislation’s negative effects, such as making it harder for individuals, businesses, builders, and developers to access, understand, and comply with the law, thereby reducing public health and safety rather than enhancing it.

It is easy to see why SDOs support the Pro Codes Act. The bill would give them the exclusive legal authority to write, publish, and distribute standards incorporated into law. In addition to the obvious monopoly rents, any attempt by third parties to republish, summarize, index, or otherwise simplify access to these standards could be subject to legal challenge, with fines or other penalties imposed on the defendants. For example, if a software developer were to compile building codes from federal, state, and local sources and then offer a compliance tool based on that data, SDOs could sue the developer and persuade courts to shut the service down, harming both the service provider and its intended audience.

These practical possibilities aside, the idea that any one person or entity could “own the law” is patently absurd. In fact, SDOs have spent decades attempting and failing to convince the courts that they should be able to do so. In the majority opinion for one such case, Georgia v. Public.Resource.Org Inc. (2020), U.S. Supreme Court Chief Justice John Roberts stated that “[t]he animating principle behind the government edicts doctrine is that no one can own the law,” essentially reiterating what Nash v. Lathrop explained in 1886:

Every citizen is presumed to know the law thus declared, and it needs no argument to show that justice requires that all should have free access to the opinions, and that it is against sound public policy to prevent this, or to suppress and keep from the earliest knowledge of the public the statutes or the decisions and opinions of the justices. Such opinions stand, upon principle, on substantially the same footing as the statutes enacted by the Legislature. It can hardly be contended that it would be within the constitutional power of the Legislature to enact that the statutes and opinions should not be made known to the public. It is its duty to provide for promulgating them.

These words remain true today: laws and regulations cannot be copyrighted. The law belongs to no one individual or entity, but to every American citizen—and the public has the inviolable right to read, print, and freely distribute the law however they wish.

Proponents of the Pro Codes Act argue that the bill would actually make the standards more accessible by mandating that they be made available to the public. Yes, the codes should be freely available online; however, as explained above, it is the government’s duty to make citizens aware of the law as quickly and thoroughly as possible. Making SDOs the sole distributors of the law (or even portions of the law) is therefore a dereliction of this duty, not its fulfillment.

Further, this system is ripe for abuse. It would allow companies to upload their standards in ways that are difficult to access, read, or understand. For example, SDOs would be able to publish the law in a read-only format that cannot be printed or stored as PDF files that are difficult to search. The Pro Codes Act would also give SDOs the right to require the creation of an account—email, password, and so on—in order to read the codes. The principle, however, is clear: When it comes to mandates adopted into law, any barriers to access, however small, are unacceptable. Adhering to numerous statutory requirements already poses substantial compliance challenges that would only be exacerbated by additional constraints on access to copies, summaries, analyses, or indices of the law. The government has a clear duty to make the law widely available and known, and the Pro Codes Act would do exactly the opposite.

Assertions regarding the Pro Codes Act alleged necessity for the continued viability of SDOs also warrant scrutiny. While proponents invoke scenarios in which the absence of such legislation would precipitate a regulatory vacuum in building, electrical, and fire safety codes, such catastrophic predictions lack substantive merit. On the contrary, SDOs have never been allowed to copyright the law, and yet they have thrived. There are hundreds of SDOs in the United States and thousands globally. While their success varies, the American National Standards Institute—which supports the Pro Codes Act—reported $89.7 million in revenue in 2022. Other SDOs are similarly lucrative. In short, these are hardly small businesses struggling to survive without additional copyright protections. Even without these protections, SDOs could easily add to their revenue streams by providing innovative products and services built around their unique knowledge of the codes they developed.

Another way to view the impermissibility of copyrighting public law is to focus on the transformation of codes as they move from the private domain to the public by relying on the concept of “taking.” It is, of course, not appropriate (nor constitutionally sanctioned) for the government to appropriate property indiscriminately. But what if the property in question was designed and created specifically to be incorporated into the law? And what if the value of that property comes primarily from the fact that it is incorporated into the law? This is exactly what happens with building and related codes: SDOs create these standards with the explicit intent of having them incorporated by reference into the law, even though nearly 140 years of legal precedent make it clear the law cannot be copyrighted. The ability to copyright the law has never been vital to the success or continued existence of SDOs, and despite what they say, building, fire, and electrical codes will continue to exist without the Pro Codes Act—as they have “for more than 125 years.”

The bottom line: The Pro Codes Act flies in the face of reason by implying that a private company can own a copyright on standards that have been incorporated into the law. Adhering to this standard would restrict access to the law when we should be expanding it and would make it harder for the public to understand and comply with the law rather than easier. Such a standard is contrary to the core democratic value that every citizen has the right to know the laws by which they are bound. That principle was worth fighting for in 1776, and it remains worth fighting for today.