“Protecting U.S. Leadership in Codes Development and Enhancing Public Access”

1[House Hearing, 119 Congress]2[From the U.S. Government Publishing Office]34                  PROTECTING U.S. LEADERSHIP IN CODES5                DEVELOPMENT AND ENHANCING PUBLIC ACCESS6=======================================================================78                                HEARING910                               BEFORE THE1112                  SUBCOMMITTEE ON COURTS, INTELLECTUAL13                 PROPERTY, ARTIFICIAL INTELLIGENCE, AND14                              THE INTERNET1516                                 OF THE1718                       COMMITTEE ON THE JUDICIARY1920                     U.S. HOUSE OF REPRESENTATIVES2122                    ONE HUNDRED NINETEENTH CONGRESS2324                             SECOND SESSION2526                               __________2728                        TUESDAY, APRIL 21, 20262930                               __________3132                           Serial No. 119-643334                               __________3536         Printed for the use of the Committee on the Judiciary3738[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]3940               Available via: http://judiciary.house.gov4142                             __________4344                   U.S. GOVERNMENT PUBLISHING OFFICE4563-529			  WASHINGTON : 202646=======================================================================4748                       COMMITTEE ON THE JUDICIARY4950                        JIM JORDAN, Ohio, Chair5152DARRELL ISSA, California             JAMIE RASKIN, Maryland, Ranking53ANDY BIGGS, Arizona                      Member54TOM McCLINTOCK, California           JERROLD NADLER, New York55THOMAS P. TIFFANY, Wisconsin         ZOE LOFGREN, California56THOMAS MASSIE, Kentucky              STEVE COHEN, Tennessee57CHIP ROY, Texas                      HENRY C. ``HANK'' JOHNSON, Jr.,58SCOTT FITZGERALD, Wisconsin              Georgia59BEN CLINE, Virginia                  TED LIEU, California60LANCE GOODEN, Texas                  PRAMILA JAYAPAL, Washington61JEFFERSON VAN DREW, New Jersey       J. LUIS CORREA, California62TROY E. NEHLS, Texas                 MARY GAY SCANLON, Pennsylvania63BARRY MOORE, Alabama                 JOE NEGUSE, Colorado64HARRIET M. HAGEMAN, Wyoming          LUCY McBATH, Georgia65LAUREL M. LEE, Florida               DEBORAH K. ROSS, North Carolina66WESLEY HUNT, Texas                   BECCA BALINT, Vermont67RUSSELL FRY, South Carolina          JESUS G. ``CHUY'' GARCIA, Illinois68KEVIN KILEY, California              SYDNEY KAMLAGER-DOVE, California69GLENN GROTHMAN, Wisconsin            JARED MOSKOWITZ, Florida70BRAD KNOTT, North Carolina           DANIEL S. GOLDMAN, New York71MARK HARRIS, North Carolina          JASMINE CROCKETT, Texas72ROBERT F. ONDER, Jr., Missouri       Vacancy73DEREK SCHMIDT, Kansas74BRANDON GILL, Texas75MICHAEL BAUMGARTNER, Washington76                                 ------7778             SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY,79               ARTIFICIAL INTELLIGENCE, AND THE INTERNET8081                    DARRELL ISSA, California, Chair8283THOMAS MASSIE, Kentucky              HENRY C. ``HANK'' JOHNSON, Jr.,84SCOTT FITZGERALD, Wisconsin              Georgia, Ranking Member85BEN CLINE, Virginia                  ZOE LOFGREN, California86LANCE GOODEN, Texas                  TED LIEU, California87LAUREL LEE, Florida                  JOE NEGUSE, Colorado88KEVIN KILEY, California              DEBORAH ROSS, North Carolina89RUSSELL FRY, South Carolina          SYDNEY KAMLAGER-DOVE, California90MICHAEL BAUMGARTNER, Washington      Vacancy9192               CHRISTOPHER HIXON, Majority Staff Director93                ARTHUR EWENCZYK, Minority Staff Director9495                            C O N T E N T S9697                              ----------9899                        Tuesday, April 21, 2026100101                           OPENING STATEMENTS102103                                                                   Page104The Honorable Darrell Issa, Chair of the Subcommittee on Courts,105  Intellectual Property, Artificial Intelligence, and the106  Internet from the State of California..........................     1107The Honorable Henry C. ``Hank'' Johnson, Ranking Member of the108  Subcommittee on Courts, Intellectual Property, Artificial109  Intelligence, and the Internet from the State of Georgia.......     3110The Honorable Jim Jordan, Chair of the Committee on the Judiciary111  from the State of Ohio.........................................     5112The Honorable Deborah K. Ross, a Member of the Subcommittee on113  Courts, Intellectual Property, Artificial Intelligence, and the114  Internet from the State of North Carolina......................     5115116                               WITNESSES117118James Pauley, President, CEO, National Fire Protection119  Association120  Oral Testimony.................................................     7121  Prepared Testimony.............................................     9122Keith Kupferschmid, CEO, Copyright Alliance123  Oral Testimony.................................................    17124  Prepared Testimony.............................................    19125John Delli Venneri, General Counsel, American Society of126  Mechanical Engineers127  Oral Testimony.................................................    27128  Prepared Testimony.............................................    29129Jonathan Band, Principal, Policybandwidth, behalf of Library130  Copyright Alliance131  Oral Testimony.................................................    34132  Prepared Testimony.............................................    36133134          LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING135136All materials submitted for the record by the Subcommittee on137  Courts, Intellectual Property, Artificial Intelligence, and the138  Internet are listed below......................................    64139140Materials submitted by the Honorable Zoe Lofgren, a Member of the141  Subcommittee on Courts, Intellectual Property, Artificial142  Intelligence, and the Internet from the State of California,143  for the record144    Assorted letters entitled, ``Oppose the PRO Codes Act (HR145        1631) to Protect Public Access to the Law,'' from the146        Honorable Zoe Lofgren from the State of California, and147        the Honorable Thomas Massie from the State of Kentucky,148        and Members of Congress, Jul. 22, 2024; a letter149        entitled,``Dissenting View on H.R. 1631, the PRO Codes150        Act,'' from the Honorable Zoe Lofgren from the State of151        California; a letter entitled, ``Opposition to the Pro152        Codes Act,'' to the Honorable Mike Johnson, Speaker of153        the House, the Honorable Hakeem Jeffries, Democratic154        Leader, from several organizations, Jul. 19, 2024; a155        letter entitled, ``Opposition to H.R. 1631, the156        `Protecting and Enhancing Public Access to Codes Act'157        (Pro Codes Act),'' to the Honorable Jim Jordan, Chair158        from the State of Ohio, and the Honorable Jerry Nad-ler,159        Ranking Member from the State of New York, the Committee160161Materials submitted by the Honorable Zoe Lofgren, a Member of the162  Subcommittee on Courts, Intellectual Property, Artificial163  Intelligence, and the Internet from the State of California,164  for the record--Continued165        on the Judiciary, from several organizations, Apr. 9,166        2024; and a letter to the Honorable Mike Johnson,167        Speaker, and the Honorable Hakim Jefferies, Democratic168        Leader, from SAE International, in opposition to H.R.169        1631/S. 835, the Pro Codes Act, July 18, 2024170    An Amicus Brief, The American Society for Testing Materials,171        et al. v. Public.Resource.Org, Inc., Dec. 12, 2022172    A letter to the Honorable Darrell Issa, Chair from the State173        of California, and the Honorable Henry C. ``Hank''174        Johnson, Ranking Member from the State of Georgia, the175        Subcommittee on Courts, Intellectual Property, Artificial176        Intelligence, and the Internet, from the R Street177        Institute, Apr. 20, 2026178    An Amicus Brief on Appeal, The American Society for Testing179        Materials, et al. v. Public.Resource.Org, Inc., Members180        of Congress, Sept. 25, 2017181    A letter to the Honorable Darrell Issa, Chair of the182        Subcommittee on Courts, Intellectual Property, Artificial183        Intelligence, and the Internet from the State of184        California, the Honorable Henry C. ``Hank'' Johnson,185        Ranking Member of the Subcommittee on Courts,186        Intellectual Property, Artificial Intelligence, and the187        Internet from the State of Georgia, and Members of the188        Subcommittee on Courts, Intellectual Property, Artificial189        Intelligence, and the Internet, from Brandon Butler,190        Executive Director, Re:Create, Apr. 20, 2026191    A letter to the Honorable Darrell Issa, Chair of the192        Subcommittee on Courts, Intellectual Property, Artificial193        Intelligence, and the Internet from the State of194        California, the Honorable Henry C. ``Hank'' Johnson,195        Ranking Member of the Subcommittee on Courts,196        Intellectual Property, Artificial Intelligence, and the197        Internet from the State of Georgia, and Members of the198        Subcommittee on Courts, Intellectual Property, Artificial199        Intelligence, and the Internet, from Adam Eisgrau, Senior200        Director, AI, Creativity, and Copyright Policy at the201        Chamber of Progress, Apr. 17, 2026202    An opinion, U.S. Court of Appeals for the Third Circuit in203        American Society for Testing & Materials, d/b/a ASTM204        International v. Upcodes, Inc.; Garrett Reynolds; Scott205        Reynolds, Apr. 7, 2026206    A document entitled, ``Am. Soc'y for Testing & Materials v.207        Public.208        Resource.Org, Inc. 82 F.4th 1262 (D.C. Cir. 2023),'' 2023209    An article entitled, ``Court Rules in Favor of Public Access210        to Information,'' Apr. 13, 2026, Association of Research211        Libraries (ARL)212    An article entitled, ``D.C. Circuit Court of Appeals Holds213        Non-Commercial Use of Industry Standards Incorporated214        into Law Is Fair Use,'' Sept. 18, 2023, Husch Blackwell215    An Appeal document, American Society for Testing and216        Materials, et al. v. Public.Resource.Org, Inc., United217        States Court of Appeals, District of Columbia Circuit,218        Sept. 12, 2023219    A document on Pro Codes Case Law220    An article entitled, ``Publisher of industry standards loses221        appeal over startup's fair-use defense,'' Apr. 9, 2026,222        Westlaw Today223    A document entitled, ``Frequently Asked Questions,'' Pro224        Codes Act225    Pages entitled, ``International Code Council Inc.,''226        ProPublica227    Pages entitled, ``National Fire Protection Association,''228        ProPublica229Materials submitted by the Honorable Darrell Issa, Chair of the230  Subcommittee on Courts, Intellectual Property, Artificial231  Intelligence, and the Internet from the State of California232    Support letters entitled, ``H.R. 4072--Pro Codes Act Support233        Letters,'' International Code Council Chapter and234        Governmental Members, and various organizations235    A statement from Advancing Standards Transforming Markets236        International (ASTM), Apr. 21, 2026237    A letter from Frank Cullen, Executive Director, Council for238        Innovation Promotion (C4IP), Apr. 20, 2026239    A letter from Adam Eisgrau, Senior Director, AI, Creativity,240        and Copyright Policy at the Chamber of Progress, Apr. 17,241        2026242    A letter from Alpesh Shah, Managing Director, IEEE Standards243        Association, and Russell Harrison, Managing Director,244        IEEE-USA, Apr. 20, 2026245    An IRS Form 990, ``Return of Organization Exempt from Income246        Tax,'' 2022, Public Resource Organization, Inc.247    An IRS Form 990, ``Return of Organization Exempt from Income248        Tax,'' 2023, Public Resource Organization, Inc.249    An IRS Form 990, ``Return of Organization Exempt from Income250        Tax,'' 2024, Public Resource Organization, Inc.251    A letter from Wayne Brough, Resident Senior Fellow, R Street252        Institute, Apr. 20, 2026253    Pricing from UpCodes254    A statement from Shawn Griffin, Chief Executive Officer,255        President, URAC, Apr. 21, 2026256    A document entitled, ``B.5.11.1 Iron-Air Batteries.''257258                                APPENDIX259260Questions submitted by the Honorable Darrell Issa, Chair of the261  Subcommittee on Courts, Intellectual Property, Artificial262  Intelligence, and the Internet from the State of California,263  for the record264    Questions for Keith Kupferschmid, CEO, Copyright Alliance,265    Questions for John Delli Venneri, General Counsel, American266      Society of Mechanical Engineers267      Responses to questions from John Delli Venneri, General268        Counsel, American Society of Mechanical Engineers269    Questions for Jonathan Band, Principal, Policybandwidth,270      behalf of Library Copyright Alliance271      Responses to questions from Jonathan Band, Principal,272        Policy-band-width, behalf of Library Copyright Alliance273Questions for James Pauley, President, CEO, National Fire274  Protection Association, submitted by the Honorable Darrell275  Issa, Chair of the Subcommittee on Courts, Intellectual276  Property, Artificial Intelligence, and the Internet from the277  State of California. and the Honorable Ben Cline, a Member of278  the Subcommittee on Courts, Intellectual Property, Artificial279  Intelligence, and the Internet from the State of Virginia, for280  the record281      Responses to questions from James Pauley, President, CEO,282        National Fire Protection Association283284                     PROTECTING U.S. LEADERSHIP IN285             CODES DEVELOPMENT AND ENHANCING PUBLIC ACCESS286287                              ----------288289                        Tuesday, April 21, 2026290291                        House of Representatives292293           Subcommittee on Courts, Intellectual Property, and294295               Artificial Intelligence, and the Internet296297                       Committee on the Judiciary298299                             Washington, DC300301    The Subcommittee met, pursuant to notice, at 10:07 a.m., in302Room 2141, Rayburn House Office Building, the Hon. Darrell Issa303[Chair of the Subcommittee] presiding.304    Present: Representatives Issa, Jordan, Fitzgerald, Gooden,305Lee, Fry, Johnson, Raskin, Lofgren, and Ross.306    Also present: Representative Kiley.307    Mr. Issa. The Subcommittee will come to order. Without308objection, the Chair is authorized to declare a recess at any309time.310    We welcome everyone here today for a hearing on codes and311standards development and public access.312    Without objection, Mr. Kiley, when he arrives, will be able313to participate in today's hearing for the purpose of314questioning the witnesses and will receive five minutes for315that purpose.316    I now recognize myself for an opening statement.317    Earlier in the back, I welcomed everyone to Ground Hog Day318because it is seldom that we have a bill that wins319overwhelmingly on the House floor by nearly two-thirds, having320had full hearings and markups, having some of what you see on321the screen, the 8,000-plus entities that helped create what we322often call the building codes. In fact, these how-to manuals,323which are included by reference in many laws but, ultimately,324are far more than simply statements of fact for the law.325    It was with some surprise that we found that we narrowly326lost a suspension vote. We expect to come back again shortly.327For that purpose, today's hearing will, in fact, try to cover328some new information, if we possibly can, and particularly a329new approach to explaining how we got here.330    James Madison, in fact, argued the need to grant limited331terms of exclusive rights to inventors and authors, as he said332in the Federalist 43. Ultimately, his argument became Article333I, Section 8, Clause 8 of our Constitution.334    Let me be very clear, it does not bestow a right. There is335no absolute right to copyright. There is no absolute right to336patent. Those are creations, as our Constitution says, to337promote progress of science and useful arts by securing for a338limited time to authors and inventors that exclusive right to339the respective writings and discoveries.340    That is so important today, because the bill that is being341considered and will be back on the floor is a balance. How do342we continue to have the promotion that causes over 8,000343entities to work, in many cases completely as volunteers, to344produce some of these great--and, of course, I'm using old345books because most of its online today--but the building codes.346More than the codes, building the how-to manuals, the what is347right, what are the cautions, what should you know. These are348educational books, broadly.349    Many say because they are included by reference, by cities,350and others, that somehow that diminishes their legitimate351copyright. For purposes of this bill, we have sought to find a352middle ground. We have sought to say, because you must comply353with the law and because municipalities and States often simply354refer to a copyrighted material, that making that available for355purposes of knowing what the law is referring to is reasonable.356    Just as a copy in the library is free to read, the bill357that we propose makes it possible for you to, in fact, find out358what that reference is, but it stops short of allowing you to359simply make a xerox copy and include it with your application.360It stops short of saying that all the information that helps361you produce a better, safer product, to know the risk involved362if you choose to do something one way versus another and so on363is, in fact, still protected.364    That balance is not easy, but it is a balance that our365Founders gave us. They gave us the responsibility to make this366a promotion, to make it for a limited period of time, but, in367fact, to make it ultimately available to the public. That's368what we're doing here in this legislation.369    It's also a reflection. I serve on the Science Committee.370Scientific works have had many of the same sort of comments,371that there is somehow fact not something that is a work. Well,372you're just stating what is science. When somebody discovers373the genome, maps it, it was argued that shouldn't be patented.374That argument fell short because, although we all have those375genes in us, finding a way to map them, finding a way to create376a useful work in science that has led to amazing development377had to be promoted, and we are having the same situation here378today.379    We have people today that will be testifying to who380disagree, who believe that, in fact, everything should be free,381and have a fairly diminished view of what a copyright is. They382are entitled to that. We also have panelists that agree with383the basic language of the bill, and we have panelists, some of384them are from those 8,000 names you see scrolling here, who385want more. They want an outright rejection of any use in the386public domain. They don't want it to be available.387    Others, quite frankly, will argue that their association388members are different, that they don't promote, even though389they get included. Let me be clear. Having looked at that390extensively, the taking by a city or a State or even the391Federal Government and including it in a statutory requirement392you comply with would have the exact same effect, an effect393that says the public has a right to see the law.394    Mr. Massie will be here later, and I side with him and395others on the dais in saying, if it becomes the law, you should396be able to find it, see it at no cost. How that is facilitated397is open to debate but not whether or not you should. For that398reason I find it--and I'm not trying to be argumentative here,399that comes later--I'm trying to make the point that it's moot400whether you promote it to be in the law or it ends up in the401law.402    Ultimately, we believe, on this side of the dais, that the403American people have a right to see their laws. It doesn't mean404they have a right to take it all, to use it, to resell it, and405to monetize it. That's short of what you have with the law. For406that reason, we have the grand compromise of H.R. 4072, the Pro407Codes Act.408    We want to preserve copyright for a reason. If I were to409stack up every book, many of them thicker than this one, that410is produced by these 8,000 companies, we would have this dais411filled. When you look at those books--and I'll ask some of the412witnesses here today--when you look at those books carefully,413you see some things that clearly look like the law, but you414also see an amazing amount of information, warnings, how-tos,415things that, in fact, would be in any good manual.416    We are not in another country. In the U.S., we go it our417own way. I want to be clear. Reference to other countries and418how they do it really doesn't matter, and it doesn't matter419because America is where we are because of our respect and420balance for intellectual property.421    Last, I'll close with this and recognize the Ranking422Member--there are those who will argue that once something is423fact and everyone knows it's not copyrightable. For those like424me who love to cook, does that mean that when Betty Crocker425tells you how to make cookies and she gives a set of426ingredients, and those are the same ingredients and sometimes427the exact same measurements that other recipes have, that428somehow the Betty Crocker book should not be copyrighted and429anyone should be able to monetize it while it's still under430copyright?431    I disagree that is the reason that it was so important to432have a second hearing to make it clear that when this goes to433the floor, this will be a statement by the U.S. Congress that434we believe in those original principles of promoting while435balancing these works of these authors.436    With that, I recognize the Ranking Member for his opening437statement.438    Mr. Johnson. Thank you, Mr. Chair, and thank you to the439witnesses for your appearances today for this very important440hearing.441    When I get home to Georgia after a long week, I get off the442plane, take the airport rail to my car, and pick up my car from443the parking area. Once I get home, I park the car, walk into my444house, and cut the lights on. I might fix some hot tea after445pouring some water and heating it up in the microwave. I rarely446think about it, but all these steps from the airport to my447house are governed by codes, developed by standards developing448organizations, or SDOs.449    Standards governing everything from light rail and parking450garages to home fire codes and water piping touch each of us in451our everyday lives. When a contractor works on your house or a452firefighter inspects your workplace for fire safety, they have453to consult their respective codes. While most of us know that454these codes exist, we rarely consider where those codes come455from.456    An important part to you and me is that the standards in457those codes work. They keep us safe. They keep our lives458running with us none the wiser.459    SDOs regularly get together and come up with the state-of-460the-art guidelines for their trades. These best practices461govern everything from consumer safety and household utility462installation to home electrical wiring and plumbing. SDOs make463sure your house won't catch on fire, your plumbing is up to464code, your water boiler is installed correctly, and everything465in between.466    If you live in an area that might be affected by floods or467by earthquakes, you want to ensure your house is built to468withstand natural disasters. You rely on your local contractor,469and your contractor relies on their SDO standards.470    Now, so far as this sounds like a great hearing for the471Transportation and Infrastructure Committee, which I also serve472on, the reason why this is in the Intellectual Property473Subcommittee of Judiciary is because this Subcommittee cares474about standards, and it's because of a recent circuit court475decision--actually, recent court decisions that have made it476harder for SDOs to assert their copyright when others post477their codes online.478    States and local governments frequently adopt SDO-developed479codes by reference into law. They do this for a few reasons but480primarily because the government doesn't have the funds to481employ experts to develop a unique building code and do not482update the law often enough to keep up with the changes of483society and in best practices.484    Georgia, for example, can refer to the National Fire485Protection Association's most updated--or up-to-date code in486their laws. That way the law is always up to date, and they487don't have to pay experts to develop something new. This is the488point where intellectual property issues arise.489    Some point to the Supreme Court's Georgia v.490Public.Resource. Org decision and say, quote, ``that no one491owns the law.'' If you can't access the code, you don't know492what the law says, and Americans have a reasonable interest in493knowing they can access the laws that govern them.494    Others point out that SDOs fund their work by selling their495copyrighted material to experts who use it to make necessary496evaluations, repairs, and installations. Without this rigorous497development and dedication to constant improvement, they argue498American standards would fall behind.499    We find ourselves in a dilemma. Once the code is law, it500seems only reasonable that Americans should be able to figure501out what the law says. On the other hand, SDOs fund their work,502which we rely on to keep us safe, through the sale of their503copyrighted works. We also have an interest in ensuring these504codes always reflect the highest possible standards, and they505can't do that without income or revenue.506    Multiple circuit court decisions have found that507publication of codes incorporated by reference is fair use. If508we want to ensure that SDOs retain their copyright, legislation509is necessary. The question is, what kind of legislation?510    Last Congress, I voted in favor of the Pro Codes Act, but511at the time I expressed concern that we hadn't had a fact-512finding hearing to listen to all the different sides to this513issue. I understand that there are quite a few different514perspectives represented here, and I commend my colleague,515Chair Issa, for working with me to put together a panel of516witnesses that can speak to the many facets of the copyright517problems with incorporation by reference.518    I look forward to hearing from the witnesses, and I yield519back the remainder of my time.520    Mr. Issa. I thank the Chair--or the Ranking Member. I now521recognize the Chair of the Full Committee, Mr. Jordan.522    Chair Jordan. I just want to thank the Chair for this523hearing, for our witnesses who are here today, and for the524Chair's persistence in trying to get this legislation across525the finish line.526    With that, I would yield back.527    Mr. Issa. I thank the gentleman. I now recognize the528Ranking Member, the gentleman from Maryland, Mr. Raskin.529    Mr. Raskin. Thank you, Chair Issa. Thanks to all our530witnesses for joining us today.531    We have got two competing principles in play today, both of532them deeply rooted in our constitutional culture, and one of533them is the protection and incentivization of creators through534copyright, and the other is the idea that public laws must be535available to the public on a universally accessible and free536basis.537    The Pro Codes Act introduced by the distinguished Chair,538Mr. Issa, and our esteemed colleague, Representative Ross,539seeks to reconcile these principles by promoting innovation540alongside a legal system that the public can access. I541recognize there's no shortage of strong, divergent opinions on542all sides of this issue, sometimes held by the exact same543person, as people change their minds over time about this544question, which sometimes can seem kind of esoteric. It's545incumbent on this Committee to study the details here where the546answer is going to lie.547    We've got to be sure that we are reconciling these two548principles. The devil's in the details, Mr. Chair, and I look549forward to hearing from our excellent witnesses today.550    Mr. Issa. Would the Ranking Member mind yielding just a551moment to the coauthor of the bill, Ms. Ross?552    Mr. Raskin. By all means. Ms. Ross has arrived. Please,553happy to yield to you.554    Ms. Ross. OK. Thank you so much for that, Mr. Chair and the555Ranking Member, and thank you to our witnesses for being here.556    I think it is very important that we have a full and robust557conversation about this issue. Representative Issa and I have558been through this in Committee. We've had a markup in559Committee, but we haven't had this kind of philosophical debate560with outside folks coming in. I'm really glad that we're doing561that.562    I do want to let people know who may be tuning in to this563for the first time, last Congress, there was a lot of activity564on this bill, and there were a lot of changes made with the565input of people who had ideas for how to improve public access,566particularly input from the disability community, and I567sponsored those amendments.568    When I get my opportunity to ask our witnesses some569questions, you'll hear a little bit more about how I view this,570but I do think that the bill in its current form has only been571getting better and fairer and more inclusive of the public,572while protecting the intellectual property of the people who573have put their blood, sweat, and tears in it and promote our574safety.575    It will give that kind of balance and, I hope, encourage576the people who have been doing this amazing work on these codes577for decades the incentive to keep doing their work and keeping578the public safe while providing that access to people who need579to know what's in the law.580    Thank you so much, Mr. Chair, and I look forward to the581discussion.582    Mr. Issa. Thank you. The Ranking Member yields back. We now583introduce our panel of experts for their opening statements.584    We begin with Mr. James Pauley. Mr. Pauley is President and585Chief Executive Officer of the National Fire Protection586Association, a nonprofit association that develops standards587and codes related to fire prevention. The NFPA also engages in588research, training, education, outreach, and advocacy.589    Mr. Keith Kupferschmid is the President and Chief Executive590Officer of the Copyright Alliance, a nonprofit organization591that advocates on behalf of creators and innovators. He592previously served as the General Counsel and Senior Vice593President for intellectual property at the Software and594Information Industry Association.595    Mr. John Delli Venneri is the General Counsel at the596American Society of Mechanical Engineers, ASME, a professional597association for mechanical engineers. The ASME develops codes598and standards and provides professional resources like599publications, conferences, continuing education, professional600development, and resources to its members.601    Mr. Jonathan Band is an attorney and advocate who works on602matters related to intellectual property. Today, he is603representing the Library Copyright Alliance, which consists of604American Library Associations and Associations of Research605Libraries. Both organizations consist of librarians and606research librarians.607    We welcome all our witnesses and thank you for appearing608here today.609    As I said earlier, we have a--and Ms. Ross said very well--610we have a well-balanced group that we believe represent the611entire spectrum of those involved in this issue.612    Pursuant to the Committee rules, I would ask that all613witnesses rise to be sworn in, and raise your right hand.614    Do you solemnly swear or affirm under penalty of perjury615that the testimony you're about to give will be true and616correct to the best of your knowledge, information, and belief,617so help you God?618    Thank you. Please be seated.619    Let the record reflect that all witnesses answered in the620affirmative.621    Mr. Pauley, we'll go from your side to that side, if that's622all right. You know the routine here, five minutes. We're not623going to cut you off mid-sentence, but please stay as close to624that so we can have plenty of time for questions.625    The gentleman's recognized.626627                   STATEMENT OF JAMES PAULEY628629    Mr. Pauley. Chair Issa, Ranking Member Johnson, and the630distinguished Members of the Subcommittee, thank you for this631opportunity to testify today. My name is Jim Pauley. I'm the632President and CEO of the National Fire Protection Association.633    I want to start today with a number: 54 percent. That's how634much fire incidents have declined in this country since 1980.635Home fire deaths over that same time period are down 44636percent. Now, those numbers didn't happen by chance. They637happened because of rigorous safety standards developed by638independent nonprofit organizations like National Fire639Protection Association (NFPA), and they represent the lives640saved, the families spared, and the disasters prevented.641    Now, for nearly 130 years, the NFPA has developed codes and642standards that protect lives and property from fire,643electrical, and life safety challenges. We develop and update644more than 300 of these in an open, transparent, and consensus-645based process. These standards are used by a wide range of646stakeholders: Insurance companies, manufacturers, contractors,647designers, and government.648    We don't develop them for any one group. We also don't take649money from industries that are affected by our standards, and650we don't rely on taxpayer funding to create them. We fund this651work by selling our standards to the professionals who use652them. That's the copyright model at work, and it's produced one653of the most successful public--private partnerships in American654history.655    The need for this system, it's accelerating. From656devastating wildfires to new risk from lithium-ion batteries,657the NFPA is developing standards to address challenges that658didn't exist just 10 years ago, not to mention our efforts to659continuously update the hundreds of critical existing standards660like the National Electrical Code that has protected Americans661for generations.662    Now, don't take my word that the system is working.663Governments at every level regularly turn to the work of664nonprofit standards developers because that work can be665trusted. There are tens of thousands of incorporations by666reference across American law and regulation. Every home, every667school, and every office building. Americans benefit from these668standards whether they know it or not.669    I want to be clear about something. Government comes to us,670not the other way around. When lawmakers and regulators are671trying to solve a safety problem, they turn to organizations672like NFPA because they value what it is that we can provide.673Those solutions only exist if the system that produces them can674be independently funded. If you take away copyright protection,675the funding disappears and, with it, the system that has made676Americans safer for more than a century.677    That's where the Pro Codes Act comes in. This bipartisan678bill reaffirms the copyright protections for standards679incorporated by reference while promoting transparency for the680public.681    Now, I know the Subcommittee will hear from critics of the682legislation, and I'd like to address some of those claims683directly. Most common is that the Pro Codes Act puts the law684behind a pay wall. Codes and standards are not the law. They685are privately authored works created by independent nonprofits686to solve safety problems. Governments recognize their value and687choose to reference them, but that doesn't make them the688government's work.689    Others argue that Congress doesn't need to worry about690this, that the courts are handling this just fine. Records say691otherwise. Lower Federal courts have reached inconsistent692conclusions without definitive resolution. This is a policy693question, and the Constitution commits that policy question to694Congress.695    Then there's the argument that none of this matters because696the SDOs have not gone out of business. I believe this misses697the point entirely.698    The current system is like a dam, and the court decisions699are putting cracks in that dam, and those of us downstream,700right now it's just our feet that are wet, but if Congress701waits for the dam to break, we can't come back from this.702    There's no alternative that is nearly as effective. Other703models, standards that are written by government or by704industry, either force taxpayers to foot the bill or let the705regulated industries write their own standards.706    Every year, the standards that NFPA and organizations like707us develop prevent tragedies that no one will ever hear about:708Fires that don't start, buildings that don't collapse, and709families that come home safe. That's what we stand to lose if710Congress doesn't act.711    I urge you to pass the Pro Codes Act and ensure that the712system that has protected Americans for more than a century can713continue to do so. Thank you and I look forward to your714questions.715    [The prepared statement of Mr. Pauley follows:]716    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]717718    Mr. Issa. Thank you. Mr. Kupferschmid.719720                STATEMENT OF KEITH KUPFERSCHMID721722    Mr. Kupferschmid. Chair Issa, Ranking Member Johnson, and723the distinguished Members of the Subcommittee, thank you for724holding this hearing and for inviting me to testify on this725very, very important issue.726    In addition to over two million individual creators that we727represent, the Copyright Alliance also represents the copyright728interest of motion picture studios, record labels, and729publishers of books, music, and newspapers, to name just a few,730that are commonly associated with copyright.731    We also represent organizations that the typical person may732not associate with copyright but who, likewise, rely heavily on733its protections for their businesses. One such group is734standard development organizations, or SDOs for short.735Importantly, we also represent numerous organizations that use736and license these standards.737    The urgent issue we are here to discuss today is how we738could ensure that high-quality copyrightable standards continue739to be developed and updated while also promoting public access740to those standards when they are incorporated by reference into741the law, or IBR'd for short. When a standard is IBR'd, the742public should have access to that standard.743    To be clear, that access is being provided today. Standards744are widely available. They're available for free online and for745reasonable prices via print and through subscription.746Significantly, there is absolutely no record of individuals not747being able to access these standards.748    The cases that have been litigated all involve either749commercial enterprises, like UpCodes, or ideological750organizations like public resources, not individuals. While751UpCodes and public resources claim they are promoting public752access, the records of these cases do not reflect any true lack753of access or availability.754    As to the copyrightability part of the issue, I've not755heard anyone suggest that the standards are not protected by756copyright on creation. There is no existing copyright doctrine757under which standards would or should lose their copyright758protection when they are IBR'd. In other words, IBR'd standard759presents a totally unique issue, one in which the courts are760ill-fitted to solve.761    Litigation in Federal courts has created uncertainty762regarding the copyright status of standards that have been763IBR'd. This lack of clarity and misapplication of law threatens764to destabilize the entire standards development ecosystem.765Moreover, when these courts misapply standards for766copyrightability or fair use, the resulting analysis and767decision by these courts have a ripple effect that harms not768only SDOs but also has the potential to harm many other769copyright owners.770    Congress, not the courts, is best positioned to establish a771consistent and fair approach to this issue. Only Congress can772address this tension by interpreting the law as it is written773and setting the record straight when courts misinterpret the774law and stretch it in ways that are unbalanced, unfair, and775misguided.776    The Pro Codes Act attempts to directly address this tension777by ensuring that the public has access to standards that are778IBR'd without cost while clarifying the copyright protections779that make the development of these standards possible in the780first place.781    The benefits of this approach are substantial and far782reaching.783    First, it preserves the incentives that drive the creation784of high-quality standards. By maintaining copyright protection,785the Act would ensure that SDOs can continue to fund their786operation, to invest in research and development, and to update787standards to reflect new technologies and best practices.788    Second, it promotes public access. Anyone who must use789these standards will be able to view the relevant standard790online at no cost. This enhances transparency.791    Third, it benefits taxpayers and governments. Without this792system, the burden of developing complex, technical standards793would likely fall on government agencies, requiring significant794public funding and the creation of new bureaucratic795infrastructure.796    Fourth, it supports effective governance. Legislators and797regulators can continue to rely on expert-developed standards,798rather than attempting to replicate that expertise within the799government, a task that they are ill-suited for and would be800both costly and ineffective.801    In conclusion, the Pro Code Act represents a pragmatic802middle ground. It does not require choosing between public803access and copyright protection. Instead, it achieves both. It804ensures that the public can access standards when IBR'd, while805preserving a system that produces the law's technical content.806This is the kind of legislative solution that is most807effective, one that recognizes the legitimate interest on all808sides and crafts a balanced approach while also serving the809broader public good.810    The timing of this legislation is critical. Courts are811actively grappling with these issues, and the risk of divergent812and incorrect interpretations is real. Acting now allows813Congress to provide guidance before a patchwork of conflicting814decisions take hold. For these reasons, I respectfully urge815this Subcommittee to advance the Pro Codes Act in some form.816    Thank you for your time and consideration. I look forward817to answering your questions.818    [The prepared statement of Mr. Kupferschmid follows:]819    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]820821    Mr. Issa. Thank you. Mr. Delli Venneri.822823                STATEMENT OF JOHN DELLI VENNERI824825    Mr. Delli Venneri. Chair Issa, Ranking Member Johnson, and826the Members of the Subcommittee, thank you for the opportunity827to testify today. I'm John Delli Venneri, General Counsel of828the American Society of Mechanical Engineers, abbreviated as829ASME.830    ASME is a 501(c)(3) nonprofit standards development831organization, commonly referred to as an SDO, that has served832the engineering profession and the public since 1880. Broadly833speaking, our standards help ensure that construction cranes do834not collapse, nuclear facilities do not fail, oil and gas835pipelines do not rupture, and the turbines used in civilian and836defense applications are cutting edge.837    ASME's flagship boiler and pressure vessel code--here I838have one volume out of 33--is used by manufacturers as a839foundation for many civilian and defense technologies.840    The Pro Codes Act harms ASME's copyright and that of other841SDOs materially, perhaps existentially. It does so by842fundamentally reshaping copyright law to benefit a single type843of SDO while eroding the copyrights of others. Because of this,844nobody should make the blank statement that this bill is845universally good for copyright because it isn't good for ASME's846copyright and other SDOs like it.847    Let me make three points to demonstrate this:848    First, the Pro Codes Act picks winners and losers.849    Second, it weakens U.S. national security and leadership850and standards development at a time of increasing geopolitical851competition.852    Third, it rewrites fundamental copyright law by introducing853the concept of a conditional copyright.854    First, this bill is a mandate that picks winners and855losers. The scope of this bill is broad. The standards ASME is856trying to protect are not local building and fire standards.857The standards that I'm asking this Committee to protect are858broader in scope, aimed at a different audience and used in a859different way.860    The operation of the Pro Codes Act is automatic. There's no861due process attached anywhere to this legislation. There's no862limit to the number of codes that can be incorporated by863reference or how many of these codes can be referenced. Here is864an important point: Under current copyright law, a standards865holder has no way of preventing incorporation by reference.866    To put things simply, the Pro Codes Act has no mechanism to867distinguish between the standards of a set of rules for the868erection of a carport and a set of differential equations used869by nuclear engineers to design a safe, small, and modular870nuclear reactor. This is not to suggest that these other871standards do not play an important role in our society, but872that is why organizations like ASME and the Society of873Automotive Engineers oppose this bill.874    Second, the Pro Codes Act risks national security and875leadership and standards development. Technological standards876are not simply a set of rules. They enable the development of877cutting-edge technology that is safe, repeatable, and878interoperable.879    The United States leads the world in standards development880because of a system built on private sector expertise,881voluntary consensus, and sustained investment. Because of ASME882and other organizations like us who create complex standards,883the United States leads the world in technologic and scientific884innovation. In a new geopolitical world where rival countries885have recognized that standards can be used to affect how886technology evolves, we should not cede this important U.S.887leadership role.888    Third, the Pro Codes Act fundamentally changes the law of889copyright, rendering it contingent on the decisions of any890governmental body. Copyright has long provided creators with891exclusive defined rights, including the ability to control the892distribution of their works. The Pro Codes Act fundamentally893changes that framework. It now interjects an entirely new894concept of copyright, which is conditioned on the decisions of895government. The result is force publication--force public896distribution of privately developed works, without897compensation. This is not protection. It's compelled898forfeiture.899    In conclusion, the Pro Codes Act is presented as a balanced900solution. It is not. It's a mandate that, (1) picks winners and901losers; (2) weakens U.S. national security and leadership in902standards development; and (3) fundamentally rewrites copyright903law to erode, not protect, copyright.904    If Congress is going to pass legislation, it must not905contort the law to protect one set of private actors while906potentially destroying others. I ask this Committee to reject907the Pro Codes Act.908    Thank you, and I look forward to your questions.909    [The prepared statement of Mr. Delli Venneri follows:]910    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]911912    Mr. Issa. Thank you. Mr. Band.913914                   STATEMENT OF JONATHAN BAND915916    Mr. Band. Chair Issa, Ranking Member Johnson, and the917Members of the Subcommittee, thank you for the opportunity to918share the library perspective on the Pro Codes Act.919    I represent the Library Copyright Alliance. Today, I'll920discuss our concerns with pro codes and how it interferes with921public access to the law, then I'll propose a better way922forward: Governments directly incorporating standards into the923law rather than just incorporating them by reference.924    Libraries are strongly committed to the government edicts925doctrine, the principle that no one can own the law. We believe926that once a portion of a standard is incorporated into the law,927whether directly or by reference, that portion enters into the928public domain and can be posted freely online. Pro codes are an929attempt to reverse the government edicts doctrine in a narrow930but significant way by affirming copyright ownership over IBR931standards.932    I have four points concerning pro codes.933    First, pro codes are unconstitutional. The government934edicts doctrine is rooted in the Constitution. Allowing a935private entity exclusive ownership of the law would run936contrary to the rights of free expression and due process.937    I acknowledge the bill's attempt to limit its adverse938effect by requiring a degree of public access, but this public939access requirement is insufficient to cure the bill's940constitutional infirmity. The bill does not require the full941text of the public access version to be searchable,942downloadable, or reproducible. The bill would still interfere943with a person's ability to understand and comment on their944legal obligations.945    Second, pro codes would limit public access to the law.946Because of the limited read-only nature of its public access947requirement, pro codes would make it difficult for members of948the public to access the law in IBR situations. Also, the Act949would codify existing restrictive practices of SDOs that950require users to create an account and agree to terms of951service to access the material online. The net result is the952bill would restrict public awareness of the law, escalate the953cost of homeownership by increasing costs to builders, and954inhibit commentary and criticism, among other negative impacts.955    Third, pro codes are based on an incorrect premise. The956basic premise of pro codes is that without the incentive957provided by copyright, SDOs would not undertake the costly958standard development process. This premise is incorrect. In the959vast majority of cases, industry participants have an economic960incentive to participate in the development of standards.961Often, SDOs lobby government entities to adopt their standards962as law. In the absence of copyright protection, SDOs would963still develop standards and then request government entities to964adopt them as regulations.965    Also, in the recent fair use litigation, courts have found966that the reposting of IBR standards has not caused harm to the967market for those standards.968    Fourth, pro codes would not achieve the certainty its969supporters seek. Even if pro codes were enacted, the SDOs would970not necessarily be able to prevent the reposting of IBR971standards with any certainty. A court might still find that the972reposting of an IBR standard was a fair use. In the recent973litigation concerning the reposting of standards, the courts974have permitted the reposting under a fair use theory.975    Direct incorporation is a better way to address this issue.976IBR is an analog-era solution that was necessary when977voluminous standards were available only in printed978publications that were expensive to produce. Now, that979standards can be made available digitally, it would be more980efficient and effective to require government agencies to981incorporate standards directly into codes and to make the982complete codes available online from the official agency983website.984    Before direct incorporation, the agency might have to985request a royalty-free license from the SDO. We expect that986most SDOs would eagerly grant such a license because their987objective in creating the standard in the first place was for988it to be adopted by an agency as a regulation.989    I'm happy to answer any questions the Subcommittee may990have.991    [The prepared statement of Mr. Band follows:]992    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]993994    Mr. Issa. Thank you. We'll start off with Mr. Fitzgerald.995    Mr. Fitzgerald. Chair, thank you very much.996    Mr. Pauley, let me start with you. These numbers are what997you laid out, but fire incidents since 1980 have declined by 54998percent, and home fire deaths have declined by 44 percent over999the same period. Because of the work of the standards1000development organ--the SDO, like NFPA--in other words, when1001Americans go to bed tonight, they're safer because of the1002standards your organization has developed. Do you think that's1003correct?1004    Mr. Pauley. I would agree with that statement, sir.1005    Mr. Fitzgerald. Your standards development process is1006currently self-funded, right?1007    Mr. Pauley. That's correct.1008    Mr. Fitzgerald. On average, how many do you think--how much1009do you think it costs--that's a tough one to answer maybe--of1010what it costs for an NFPA to develop a new standard or update a1011current standard that might be in place?1012    Mr. Pauley. I appreciate that question. It is a tough one1013to answer. The vast majority of our expenses that we incur do1014go to the development of standards, because it's not just--I1015realize people think of it as just words on paper, but I have1016engineering staff that have to staff technical committees. I1017have IT staff that has to put the systems in place to be able1018to update those standards.1019    We have to operate as an entire function to be able to1020carry out this work. The vast majority of our expenses do go--1021we don't track it by individual standards. We look at it as an1022entire process.1023    Mr. Fitzgerald. The copyright attached to the code is the1024primary revenue that's generated to fund that process.1025    Mr. Pauley. Yes, sir, Representative Fitzgerald. It makes1026up about 70 percent of our revenue comes from the sales and1027licensing of our codes and standards.1028    Mr. Fitzgerald. You think you could continue to have the1029self-funded model absent the Pro Codes Act?1030    Mr. Pauley. No, sir. I believe that's exactly what's at1031risk today, is that the model works not only because it's self-1032funded, but because it also allows us to be independent, and1033that's such a critical part in the development of codes and1034standards. We put people around the table so that no one entity1035or interest can control the outcome of that standard. Us being1036independent is what's important to do that. If we have to do1037that by taking money from industry, it won't be independent. If1038we have to take money from government, it won't be independent.1039    This model's worked for a century, and it has worked well1040and it has served the public well.1041    Mr. Fitzgerald. Very good. Thank you.1042    Mr. Venneri, I don't want to put words in your mouth, but1043your association's concerns with the proposed Pro Codes Act, a1044lot of it seems to be centered around the mandated posting of1045the codes online. Is that an accurate statement?1046    Mr. Delli Venneri. That is correct.1047    Mr. Fitzgerald. OK. That's because some of the codes are1048for national security, critical industries, and specific types1049of technologies. Is that correct?1050    Mr. Delli Venneri. It's not necessarily just the1051technologies, Mr. Fitzgerald. The question and the problem with1052the Pro Codes Act is that the person or the entity that decides1053whether or not my copyrighted material must be posted online1054for free is not the copyright holder. It's not ASME. It's the,1055roughly, 50,000-90,000 jurisdictions in the United States that1056decide what they want to incorporate and what they don't want.1057Because the premise pooled commission can take my 33-volume1058standard and say we're incorporating by reference, it1059automatically puts a mandate on me to publish that out on the1060web, and I don't have control over that.1061    Incorporation by reference is not a copyright violation. I1062have no way to stop anybody from incorporating by reference. If1063you've got enough jurisdictions out there incorporating this,1064incorporating that, you're going to essentially wind-up with1065having the whole out there.1066    The other piece of our standards that are different than1067Mr. Pauley's is our standards are for manufacturers. By the1068time our standards--by the time a product gets into the hands1069of a consumer, all the compliance is done by the manufacturer,1070not by the consumer.1071    They're different, and that's part of the reason why I have1072an issue with the bill as drafted, because it's one size fits1073all no matter what kind of standard you're dealing with.1074    Mr. Fitzgerald. One more followup, I guess, would have been1075some discussion about national security implications. Can you1076just reference that quickly? What could they be?1077    Mr. Delli Venneri. Absolutely. Manufacturers come to us1078because we're a 501(c)(3), and they donate their time. The1079concept that I'm trying to get around is it costs a lot of1080money to do these very highly technical codes. If you take away1081my revenue source, I leave the field. Then, who is going to1082come into that field? It's going to be geopolitical rivals.1083    Mr. Fitzgerald. Thank you, Chair. I yield back.1084    Mr. Issa. I thank the gentleman. We now go to the gentleman1085from Maryland for five minutes.1086    Mr. Johnson. Thank you--1087    Mr. Issa. Oh, I'm sorry. The gentleman from Georgia.1088    Mr. Johnson. I'm sorry. I didn't catch it. Mr. Delli1089Venneri, I'm having trouble understanding how the legislation1090could be improved to accommodate your criticisms, which are1091that it draws no meaningful distinctions between highly1092technical engineering standards as opposed to the text of laws,1093or between standards incorporated in their entirety as opposed1094to standards incorporated only in part, or to standards used1095extensively as opposed to standards used rarely.1096    Why do these differences matter in terms of adoption of the1097Pro Codes Act as written, and how could it be written1098differently to accommodate your concerns?1099    Mr. Delli Venneri. he Pro Codes Act, again, is blind as to1100the type of standard that is being incorporated by reference,1101and the incorporation is not done with our permission, right.1102It's just done by governments anywhere.1103    Mr. Johnson. That's true with the other organizations as1104well.1105    Mr. Delli Venneri. With different models, it may work,1106right. My issue is it doesn't work for my organization.1107    Mr. Johnson. Why?1108    Mr. Delli Venneri. Well, let me explain to you a little bit1109about the codes business. Not every one of our codes makes1110money. As a matter of fact, the vast majority, overwhelming1111majority don't. There's a handful that do. If I have1112governments, 90,000 governments out there deciding what needs1113to go out in the public domain and what doesn't, I could lose1114my entire royalties.1115    Mr. Johnson. OK. Thank you. A standards developing1116organization's primary function is to create uniformity across1117producers, consumers, government agencies, and other relevant1118parties concerning a product's specifications and protocols.1119These groups perform this coordination to ensure that products1120may be used and can perform according to their intended1121purposes.1122    Mr. Pauley, I'm interested in how a standard is developed1123from inception through adoption and who participates in that1124process and how are the participants in the process selected.1125    Mr. Pauley. Thank you, Ranking Member Johnson, for that1126question.1127    Let me start a little--I've been involved in the standards1128process for a really long time, so I'll try to compress it and1129be as brief as I can in its explanation.1130    Standards generally have to come from an idea. In NFPA's1131case, it is, unfortunately, often been on the backs of1132tragedies that standards have been developed because of some1133event or some occurrence, and we recognize the need for a1134standard to be able to put in place.1135    One of the examples I'd like to use for you in this is a1136standard we are working on right now called NFPA 800, the1137battery safety code. I don't think I have to tell this1138Committee about issues that have been seen with batteries,1139lithium-ion batteries, and batteries used throughout our entire1140society.1141    We published that we were going to produce this code, and1142we received public comments back from people that would say,1143this is a good idea, it's not a good idea, I would like to1144serve on the committee. We take all that input in. We draft a1145scope for that particular standard, and then we begin to1146assemble the committee.1147    What's very important in what we do in this process, as1148governed by the rules of our own rules and the rules of the1149American National Standards Institute that accredits standards1150developers, open, transparent, and consensus-based. What we1151look for are people that have an interest in the topic and that1152can bring expertise to the table, but we create a balanced1153committee. That battery committee can consist of manufacturers,1154of insurers, of designers, and of installer-maintainers of1155those systems. The list can go--we have about nine different1156classifications.1157    What's a very important part of this process is, in our1158case, no more than one-third of an interest can make up the1159committee, but two-thirds of that committee has to agree before1160you can actually add something or agree to the standard. We've1161created this balanced, transparent process. From there, the1162draft of that standard can be put out for public review, and it1163takes public inputs.1164    This document that I have in front of me, the National1165Electrical Code, every three years gets about 5,000 public1166inputs for changes to this document. The committee operates on1167every one of those. They have to address every one of those1168inputs that comes in.1169    Mr. Johnson. Is that what drives revisions and updates?1170    Mr. Pauley. That is exactly what drives revisions and1171updates. We will update this document every three years,1172regardless of what is happening from the standpoint of whether1173government is using it or not or whether it's incorporated by1174reference.1175    What's important also, not only do they address all those1176inputs, that result goes back out transparently for public1177review. In this document, about another 5,000 public comments1178come in. Those get addressed by the committee, voted on,1179balloted. That result gets produced, and ultimately the1180standard finishes our process by going through the final steps.1181    What's also very important in this process is we have to1182operate an appeals process. There has to be an appeals1183mechanism where somebody can say, we believe I was treated1184unfairly. We have an entire appeals body that does that.1185    Mr. Johnson. All right.1186    Mr. Pauley. I'll finish by answering your last question.1187The group that appoints the members of that committee is not1188NFPA staff. We have a group called our Standards Council that1189is made up of 13 voluntary members. They are from various walks1190of industry. That council is responsible for the appointments1191on the committee to ensure that we have open and balance inside1192of that process.1193    Mr. Johnson. Thank you. I yield back.1194    Mr. Issa. Thank you. The gentleman yields back. We now go1195to the gentlelady from Florida, Ms. Lee.1196    Ms. Lee. Thank you, Mr. Chair.1197    Codes and standards are around us everywhere, from the1198buildings we live in to the systems that keep us safe, and for1199decades, the United States has relied on successful public-1200private partnership where expert standards are developed by1201private organizations and then incorporated into law.1202    As we're hearing today, that system today is under strain.1203Courts are sending mixed signals about whether those standards1204retain copyright protection once incorporated by reference,1205creating uncertainty that risks undermining both public access1206and the incentives that are needed to develop high-quality1207standards.1208    At the same time, we cannot lose sight of the core1209principle that Americans should be able to access and1210understand the laws that govern them.1211    Today, I know we work to try to strike the right balance1212between protecting innovation and public safety while ensuring1213meaningful access. I appreciate very much the Chair for1214convening this hearing and all of you for helping us with this1215important and complex discussion.1216    Mr. Kupferschmid, I'd like to start with you. One of the1217things you mentioned earlier was that recent court decisions1218have created uncertainty around whether standards incorporated1219by reference remain protected and that courts have developed1220some inconsistent rulings. Could you tell us a bit about what1221some courts are getting wrong in your view?1222    Mr. Kupferschmid. Yes. Thank you very much. I work in all1223different areas of copyright. I can tell you this particular1224area is more chaotic than any other in terms of when the courts1225take on issues relating to copyrightability or fair use. There1226are direct and conflicting decisions on copyrightability, on1227fair use, throughout the country in different circuits.1228    On copyrightability, we have differences between the Second1229Circuit and the Ninth Circuit agree. We have a bunch of courts1230that is copyrightable. We have courts in the Third Circuit, I1231think the Eastern District of Missouri, D.C. Circuit, which are1232either ambiguous or silent on the copyrightability issue.1233    Then we have the Veeck case of the Fifth Circuit, which was1234decided about 25 years ago, in about a quarter century. No1235other court outside of the Fifth Circuit has decided to adopt1236that rationale and say, look, these codes and standards lose1237their copyright-1238ability.1239    On fair use, we have a similar challenge, right. The1240Supreme Court came out with this big, very, very important case1241in May 2023, I think it was, the Warhol Foundation case, and in1242that case it set standards for how the first factor of fair use1243should be interpreted.1244    Since that case came out, we now have two separate cases,1245both saying completely opposite things on fair use. That's why1246ultimately we're here. We're here because we need some clarity.1247We understand there needs to be a compromise; there needs to be1248balance. We realize that not everyone is going to be happy. We1249have extreme views sitting here. On one end of the table, we1250have someone who doesn't want any copyright protection at all.1251The other one is kind of ignoring all these cases that are1252threatening us.1253    We need to find a compromise. We need to find a balance.1254The pro codes is a good step in the right direction.1255    Ms. Lee. A related question. One of the things too that you1256mentioned was that this was an area where Congress needed to1257step in and needed to do so, I believe, more imminently. Would1258you explain why you believe congressional action is important1259rather than allowing that case law to continue to develop?1260    Mr. Kupferschmid. Well, it's not just me that thinks that1261way. We've had at least three, I should say, courts in1262different jurisdictions say, Congress, please help us out here,1263right. They have said in the actual decision, in absence of1264congressional direction here, we're going to do our best to try1265to figure this out, and they are not doing a good job. There1266are a lot of uneven, inconsistent decisions. What's going to1267happen is those decisions aren't going to hurt just SDOs. They1268are going to hurt and be applied in other copyright context and1269hurt.1270    Really this is a type of issue that Congress has in the1271past jumped in and legislated on, and it would be appropriate--1272very, very appropriate for Congress to jump in and legislate1273here as well.1274    Ms. Lee. Thank you. I'll yield the balance of my time to1275the Chair.1276    Mr. Issa. Thank you. I'll followup on that with Mr. Delli1277Venneri. If we made changes--and you know we've been1278negotiating with your organization to try to find common1279ground, and as we can tell by your opening, we didn't find it.1280If we said, for example, that only if you give consent to be1281included by reference, then this would act, would that be1282acceptable to you? If not, why not?1283    In other words, you often say that you don't try to get1284included by reference, but when you do, you don't sue them and1285say, how dare you include my copyright, and please don't. The1286question is, on those occasions in which you are to be included1287by reference, would you agree that if, in fact, you consent to1288it, you sign onto this bill, if you openly reject it and try1289not to, that you would, in that case of notice, you would not1290give up your right and have to post it?1291    Mr. Delli Venneri. I would like to first just add one1292thing, that our process is almost identical jot for jot with1293Mr. Pauley's process. I don't want to bore the Committee with1294that same testimony again. OK.1295    Mr. Issa. We do appreciate the work that all your1296organizations do. That is not the conundrum we face here today.1297    Mr. Delli Venneri. Understood. I think we're only going1298halfway. Yes, a fundamental problem is the mandatory posting.1299Absolutely. That would go a long way to getting where we need1300to go.1301    I'm actually interested in some of the statements that were1302made today about inconsistent court cases and inconsistent1303results. There are always inconsistent results in court cases,1304but the courts have consistently used fair use to decide the1305issue. Now, fair use is a case-by-case decision, right? It's1306based on the standard, the use, the infringement, all the rest.1307It's not surprising that you're going to have different results1308applying that same rule.1309    I would say, I'm not ignoring the law. One of the problems1310that I've had since day one with the Pro Codes Act is it's not1311addressing the fundamental doctrine that the courts are using1312to decide this issue, and that's fair use.1313    Understand that fair use--for fair use is even to be1314invoked as a defense--which is what it is--you have to have a1315copyright violation, which means you had a valid copyright to1316begin with. The Pro Codes Act doesn't go anywhere near1317protecting copyright. It just restates the predicate that you1318need for fair use to be actionable, or to be invoked by a1319defendant.1320    Mr. Issa. To be continued. We now go to the gentlelady from1321California, Ms. Lofgren.1322    Ms. Lofgren. Thank you, Mr. Chair. For many years, I have1323been involved in this issue to protect access to the law. I1324filed amicus briefs in cases where SDOs sued1325Public.Resource.Org for posting legal standards online.1326    As you've mentioned, sir, the courts have consistently1327defeated the idea that you can copyright protection of the law,1328that there is fair use. In fact, in 2023, in ASTM v. PRO, the1329circuit twice held that the noncommercial dissemination of such1330standais are incorporated--as incorporated by referencing the1331law are fair use. The circuit in 2026 found the same thing.1332    The Supreme Court in Georgia v. PRO found that this is fair1333use. Justice Roberts said no one can own the law. Justice1334Thomas said, ``statutes and regulations cannot be1335copyrighted.'' I think the law is clear.1336    I just think, Mr. Band, in the amicus brief in ASTM v.1337Public.1338Resource, the NAACP noted that--and this is a quote, ``Without1339the information contained within the technical standards at1340issue, Black and low-income communities are fighting blind1341against landlords and other powerful, well-resourced1342adversaries. For these communities, access to the standards is1343access to justice.''1344    Does this bill create a two-tiered system where some people1345get limited access to the law and those who pay can get better1346access?1347    Mr. Band. Yes. Thank you for the question, Representative1348Lofgren. Yes, it absolutely would create a two-tiered system,1349or at least a two-tiered system because the reading rooms that1350the SDOs have established and that this legislation would, in1351essence, bless typically involve access that just doesn't make1352sense in 2026.1353    Ms. Lofgren. Right.1354    Mr. Band. The fact that these standards are--or that these1355standards--you can't download them. You can't cut and paste1356them. It makes it much, much more difficult to use. Just having1357a PDF online really is not access.1358    Ms. Lofgren. Really, tenants or homeowners or workers would1359not have the same access. Let me just move on to another issue.1360    Mr. Pauley, you mentioned that these reference standards1361don't really have legal effect, but I would like unanimous1362consent to put into the record the fact sheet from NFPA which1363says this: ``The code references various organization standards1364within their requirements, and once the code is implemented by1365the authority having jurisdiction, those reference standards1366are a legally enforceable part of the code.''1367    I would ask unanimous consent to put that into the record.1368    Mr. Issa. Without objection.1369    Ms. Lofgren. I would like to ask unanimous consent to put1370the amicus brief into the record.1371    I just would like to note there have been comments made1372about whether or not these standard-setting organizations can1373survive, but I would just like to note, since all the cases1374have been lost in the courts, the financials are still going1375forward. I mean, ICC financials--their revenue in 2024, after1376they lost the court decisions, was $100 million. NFPA, after1377they lost, the courts precluded what they are asking to change1378now, their revenue was $115.1 million, and I would ask1379unanimous consent to put these financials into the record, Mr.1380Chair.1381    Mr. Issa. Without objection, all 990s of all nonprofits1382will be placed in the record.1383    Ms. Lofgren. That will be fine. I just think it's not that1384we don't care about what the SDOs do. Obviously, we do. What we1385care most about is upholding what the court found and what the1386public deserves, which is free and full complete access to the1387law that they are bound by. The idea that we should charge1388people or impede access to what people are bound to live by is1389just inconsistent with due process and the American system of1390justice.1391    I see my time has expired, Mr. Chair, so I yield back.1392    Mr. Issa. The gentlelady yields back. We now go to the1393gentleman, Mr. Gooden, for five minutes.1394    Mr. Gooden. Mr. Pauley, could you touch on the last comment1395about the accessibility to the codes, PDF versus searchable,1396and how they wouldn't necessarily be accessible to all? I just1397want to understand that because I hear that often.1398    Mr. Pauley. Thank you, Representative Gooden, for the1399question.1400    For NFPA, we have placed our codes and standards online for1401free access for coming up on 20 years now. By the way, just to1402be clear, we don't do that with just the standards that have1403been incorporated by reference, we do that with our entire1404library of standards, whether they have been incorporated by1405reference or not. We do believe that the transparency access to1406this is important, but it's also a balance.1407    In the case of NFPA's free access model, you can go to our1408website. You can pick any of those 350 codes and standards,1409click on the free access button. We ask for minimal1410information, typically an email address and so forth to get in,1411and you can read that entire standard, everything, from cover1412to cover. It has a searchable table of contents. There's an1413index in the back for it to be used. It is not downloadable or1414printable or, in this case, either searchable at least by full1415text other than those things I mentioned.1416    That's the balance that we're talking about in this case.1417The reason why that model has worked is because it allows1418people that want to have access to read the standard to have1419access.1420    The professionals that utilize the document, they subscribe1421or they buy a copy of the standard that it is that we're1422talking about. If I put, as was suggested, everything online1423completely for free, downloadable, or if a government did that1424on their website, why would anybody pay me for a copy of the1425standard? Suddenly, the funding model that has funded the1426entire standards system is now gone.1427    We believe that transparency and access to the standards is1428important, and we've been doing it with a two-decade track1429record as was brought up, we've been able to do that, and yes,1430we are still in existence as an SDO in that process.1431    Mr. Gooden. If we fail to pass the Pro Codes Act, how would1432you argue that this impacts the health and safety of Americans?1433    Mr. Pauley. What's most important about the Pro Codes Act--1434I understand a lot was talked about the court cases. I am not a1435lawyer that's up here in front of you. What is at risk is the1436copyright protection that we have in place. If that copyright1437protection goes away, then the safety and health of Americans1438are affected because we can no longer produce the standards.1439    I agree with Mr. Delli Venneri. Copyright is important to1440us. By the way, I share the same thing that he does. A few of1441our standards actually generate the revenue. The vast majority1442of them do not.1443    What's important about the Pro Codes Act, from NFPA's1444perspective, are two basic principles: It reinforces the fact1445that you don't lose copyright just because your standard is1446incorporated by reference, and it promotes transparency to the1447public of those particular elements.1448    Again, without it, I'll go back to my dam analogy. The1449courts are really putting cracks in the dam. The problem with1450copyright is, if the dam breaks, we lose copyright. You can't1451come back from that. It's gone. That, I believe, is the reason1452why it's imperative that Congress act.1453    Mr. Gooden. Thank you. I yield back to you, Mr. Chair.1454    Mr. Issa. Thank you. Mr. Pauley, I'm going to followup on1455that. Earlier, we quickly glanced at one of your books, and I1456asked you to keep track of that, and would you just briefly1457read it? It's on iron-air storage related to electric EV1458stations.1459    Mr. Pauley. Yes, Mr. Chair. This is out of NFPA 855, which1460is our Standard for the Installation of Stationary Energy1461Storage Systems. The particular section: Hazard conditions for1462iron-air batteries under normal operating conditions are as1463follows:14641465        Fire hazards. There is the potential for concentrations of1466        hydrogen from iron-air batteries if the area where the1467        batteries are located is not properly ventilated.14681469    Mr. Issa. Without objection, I'm going to consider that1470whole paragraph inserted in the record.1471    Now, is any part of what you started reading a code, a law?1472    Mr. Pauley. Mr. Chair, it is not the law. It is a set of1473elements that the committee has put forward.1474    Mr. Issa. The guidance, the how-to that I'll find in every1475one of these and thousands of other books--including Mr. Delli1476Venneri's company's organizations--we're not talking just about1477statute. If, in fact, we only were--these court cases, if they1478were only dealing with a very narrow gobbledygook that we see1479in U.S. 35 blah, blah, blah, it wouldn't tell you how to do it.1480It wouldn't tell you some of the concerns. It wouldn't educate1481you in the way that your books and standards books do for all1482of you, from what I understand. Is that correct?1483    Mr. Pauley. I would agree with that.1484    Mr. Issa. OK. I'm just going to yield back the time I was1485so nicely granted by making the point that Mr. Delli Venneri1486made--which I agree with--which is one of the problems here is1487that what's being referenced as a law is only a small part of1488the documents that all your organizations are producing.1489    With that, I would go to the gentlelady, Ms. Ross, for her1490five minutes.1491    Ms. Ross. Thank you, Mr. Chair, I want to thank the Ranking1492Member for letting me go before he does.1493    I'm thrilled that we're having this conversation and that1494we have the whole range of opinions about how to solve this1495problem, but the fact of the matter is, it is a problem. It may1496not be a problem in certain areas where--certain jurisdictions1497where both the people who make the codes and the people who1498want to create access have come to some agreement. I thought it1499was very interesting that Mr. Band actually talked about the1500concept of a license. We talked about that a lot.1501    What I'm seeing here is that there are two things that are1502going on. (1) A fundamental tension that we've always had in1503our law, and (2) is a looming problem. This fundamental tension1504that I'm seeing--and I served on the Uniform Codes Committee in1505the North Carolina General Assembly for many years. People1506thought it was the most boring committee. I actually thought it1507was very interesting to see all the work that goes into1508producing these independent codes.1509    Well, of course, the North Carolina General Assembly wanted1510to adopt some of these codes and not do the work itself, but a1511good thing about doing that is the lobbyists don't get1512involved. The industry doesn't get involved. You really get a1513better, more scientific, more truthful way of doing it.1514    When a government takes property, even for public good--1515which is a taking under the Fifth Amendment--they compensate1516the landowner. If the General Assembly in North Carolina wants1517to build a highway and they want to take somebody's front yard,1518they pay fair market value or fair value for it because there's1519a public good. Because they recognize that property right.1520Copyright is a property right. It's a temporal copyright. It1521has an expiration date. It is a property right.1522    For that reason, a really easy way to resolve this--but1523nobody seems to want to do it--is to actually pay people like1524you pay them when you take their front yard for a highway.1525Then, their license fees, they don't even have to be big1526license fees. Just enough to support this. Nobody wants to pay.1527They want to hide behind fair use.1528    I love fair use. I was a professor. I use fair use all the1529time. When I taught my students, I did copies of things. I1530taught the law. We went out and did it. However, to really get1531good access to the law, you actually had to pay, by the way,1532Lexis or somebody else.1533    When you are going to say that fair use covers something1534that can be further monetized, like what we see with UpCodes,1535then that is not fair use anymore; that is taking the industry1536of somebody who has copyright protection, using everything that1537the wonderful libraries are talking about for your own benefit,1538and monetizing it.1539    That is exactly what is going on right now with AI. What is1540going on with AI, is they are saying, ``Oh, there's a public1541good for us to use newspapers and artists' work, and we1542shouldn't have to pay for that because we're doing so much and1543AI is so wonderful.'' Well, AI is wonderful when it produces a1544public good, but when you're get to make money off it, no can1545do. That's why Anthropic lost its lawsuit.1546    What we're doing here is trying to have that balance,1547trying to provide people in libraries and people who need1548information with information, but also, compensate people for1549their industry.1550    I want to turn to Mr. Kupferschmid because he does1551represent people in a broader way and ask him whether I'm1552seeing this in a reasonable way, and whether expanding the fair1553use doctrine is a further threat to copyright.1554    Mr. Kupferschmid. Yes. As you were speaking, I was just1555thinking--sort of nodding in agreement with everything you said1556because your approach to the issue and your statements are spot1557on in terms of this is about balancing. If you don't have the1558correct balance, you may see the SDOs disappear, or a real1559threat to their industry for certain. I think that is something1560that is very significant.1561    The AI issues you mentioned, obviously, we're in agreement1562there. We hope the courts agree with what you just said as well1563and come out on that.1564    We're big supporters of fair use. There's nothing that's1565sort of categorically fair use one way or the other. There1566certainly will be instances where using codes and standards1567will be fair use and other instances where it should not--1568certainly should not be fair use.1569    Ms. Ross. OK. Thank you, and I yield back.1570    Mr. Issa. I thank the gentlelady. We now recognize the1571gentleman from California, Mr. Kiley.1572    Mr. Kiley. Thank you, Mr. Chair. Thank you for convening1573this hearing and for this legislation.1574    There are a few questions that we need to consider at a1575higher level here.1576    First, do we want to do something or nothing as a Congress1577in the face of the courts handling this matter in a way that1578has created uncertainty? The clear answer is we want to do1579something to produce some level of certainty.1580    Second, whether we want to empower or weaken the process of1581standard setting, which has served to tame the complexity of1582modern life and allow coordination to triumph over chaos. The1583clear answer is that we want to strengthen that process.1584    Third, do we want to strengthen or weaken the voluntary1585associations that have allowed the process of standard setting1586to play out with a broad range of expertise that would be very1587hard to replicate through some government-engineered process?1588Again, the answer is that we want to empower those1589organizations.1590    With that in view, that we have a pretty clear set of goals1591here, and the question just is how do we strike the balance?1592This legislation is aiming to do that. Perhaps it could use a1593little more refinement. That's why we're having this hearing.1594    Just to followup on the Chair's questions a little bit, Mr.1595Pauley--so, when you incorporate by reference, you're1596incorporating the standard, but the work product of the1597standard-setting organization encompasses commentary, drawings,1598illustrations, prefaces, everything else. There is that1599distinction, right?1600    Mr. Pauley. I'm sorry. You mean with respect to or as1601compared to what?1602    Mr. Kiley. If a standard is incorporated by reference, the1603only thing that's sort of part of the public body of law, then,1604is the standard itself. It's not all the supplementary material1605that your organization produces.1606    Mr. Pauley. Well, I would agree with you. This is part of1607the issue, I believe, and the lawyers on the panel can help me.1608The problem with some of the courts are they have taken a1609long--even some of the supplementary information that's in the1610standard and included that to say it's the entire standard, and1611that is indeed one of the challenges.1612    One of the points that was made along the path that's1613saying--there is a lot of what we refer to in the standards1614world as annex material, which is important material to have1615but not necessary to apply the rules of this standard itself.1616The courts have taken this thing in great--or in whole, again,1617is why I believe it really begs for a policy question for1618Congress to really deal with.1619    Mr. Kiley. Yes. Do you think--and I'll take your opinion on1620this as well, Mr. Kupferschmid--that this bill, as we've1621written it, makes that distinction in the right way? Let's1622forget standards for a second. You can look at the U.S. Code,1623the Code of Federal--the Book of Federal Regulations. There's a1624lot there that wouldn't make a lot of sense if you just kind of1625read it. The language of the law itself, it's cross-referencing1626this section and that section.1627    There's all kinds of materials that exist that help people1628interpret and give them advice on that this isn't necessarily1629part of the law itself. Are we creating the right distinction1630here?1631    Mr. Pauley. Well, I do believe that Pro Codes does strike1632the right balance between these things. If we can ensure that1633the copyright is protected overall, the access part of this of1634whatever it is that you want to try to call the standard is an1635important piece of the transparency that we talked about.1636    What would result, if I understood your question correctly,1637would be trying to separate those two pieces out into separate1638elements. I don't want to speak for my standards committees,1639but what the standards committees would say on top of that is,1640we've tried to assemble something that's useful for the people1641that professionally use the standard, and our standards1642committees are not thinking about this in terms of public1643access or anything else. That's something we as the1644organization have to be able to do.1645    Does Pro Codes strike the right balance between those? I1646suspect there's all flavors of that. What's not clear to me is1647how you would bifurcate those pieces with all the variations1648that are out there.1649    Mr. Kiley. Mr. Kupferschmid? Thank you.1650    Mr. Kupferschmid. I agree with Mr. Pauley. When you're1651talking about balancing these interests, there's definitely1652different ways to do it. We are on record, and in the1653testimony, I mentioned the fact that maybe it's better--instead1654of attaching to copyright or kind of tying public accessibility1655to copyright protection to copyright enforcement instead,1656right? That might address some of the copyright infringement1657cases that are coming out recently. Perhaps that's a way to do1658it. Maybe there's additional tweaks or something to the bill1659that can be made.1660    Ultimately, Congress is going to have to realize not1661everyone is going to be happy here. This is about compromise1662and trying to address individual interests and balance those1663interests. The Pro Codes Act coming out of the gate is a very,1664very good approach. Could it be better? Sure. I'm sure that it1665could be tweaked this way and that way, and it should be, but1666we are very supportive of the framework established by the Pro1667Codes Act.1668    Mr. Kiley. Thanks very much. I yield back.1669    Mr. Issa. I thank the gentleman. We now go to the1670distinguished Ranking Member of the Full Committee, the1671gentleman from Maryland.1672    Mr. Raskin. Mr. Chair, thank you very much, and please bear1673with me because I'm really just trying to figure this thing1674out. This is complicated, OK?1675    My first question--and I'm not even sure who it's directed1676to--is why do the government bodies not actually embody the1677standards explicitly in the codes rather than incorporate them1678by reference? I don't know.1679    Yes, Mr. Band.1680    Mr. Band. Again, that is a historical legacy from the print1681days. Remember when we used to have to go to the physical1682libraries to do all our research and nothing was online?1683    Mr. Raskin. OK.1684    Mr. Band. It was just voluminous to print.1685    Mr. Raskin. Has anybody ever challenged legislative1686incorporation by reference? We use it when we file a complaint,1687but has anybody ever said that's not law? Along those lines, if1688somebody updates their code, does that need to go back to the1689legislative body or is that just automatically incorporated by1690reference?1691    Mr. Pauley.1692    Mr. Pauley. If I could, generally, when an incorporation by1693reference is done, it is usually done by standard and by the1694edition of the standard that is particularly stated. In the1695case--I'm holding up the National Electrical Code. This is the16962026 edition. They would normally say, ``we're going to1697incorporate by reference the 2026 edition of the National1698Electrical Code.''1699    My understanding is, in the vast majority of cases, it1700would go back to the legislature for whatever the next update1701would be at some point in time.1702    Mr. Raskin. Gotcha. OK.1703    Mr. Kupferschmid. Can I answer the question from a1704copyright law standpoint?1705    Mr. Raskin. Yes. I'm going to come back to you, but let me1706just pursue Mr. Pauley for one second.1707    When you described how your system works--and you said it's1708pretty much the same with--you've got the two-thirds1709requirement. You try to bring in all the different players and1710so on. That sounds kind of like a public process where you've1711got your own rules and regulations, and then this legislation1712makes it even more public. It essentially says that we're going1713to allow people to incorporate by reference. We're going to1714make it the law. We're going to grant you the continuance of1715your copyright protection as long as you put it up online. Is1716that basically right?1717    Mr. Pauley. Yes. I think you've basically described that as1718correct.1719    Mr. Raskin. OK.1720    Mr. Pauley. It is certainly more transparent access--1721    Mr. Raskin. All right. Has this ever been challenged as a1722delegation of public power to a private entity? Has the1723constitutionality of this been upheld?1724    Mr. Delli Venneri. Well, certainly, it depends on the code,1725and that's why I've been raising these distinctions, right?1726    Mr. Raskin. Yes.1727    Mr. Delli Venneri. For example, if you want to go to the1728New Jersey electrical code, you can't find it. There's no1729posting on the New Jersey--1730    Mr. Raskin. It just incorporates by reference. Is this1731right? OK.1732    Mr. Delli Venneri. It just says go to their website,1733essentially, OK? It really depends, that is the law jot for1734jot, word for word--electrical code.1735    Mr. Raskin. Yes. Right. All right. Are your concerns1736assuaged by either of these two things? (1) You've got the1737right to opt out of this. I can see you don't like being1738compelled to put your stuff up online just because a third1739party--a legislature or city council or something--incorporates1740by reference your work. You have no control over that. (2)1741Suddenly, you are compelled to put your stuff online in order1742to protect your copyright.1743    Are you OK with this: (1) if you're allowed to opt out or,1744(2) if there is simply a statement that your copyrights are1745unaffected by this? That is that they are neither impaired or1746increased. It is just neutral. It's what the status-quo ante1747was.1748    Mr. Delli Venneri. Well, I would say that your question1749assumes that this isn't the right solution for everyone, and1750this should be a solution for everyone.1751    Mr. Raskin. That's what I'm asking. How do you make it a1752solution for everyone?1753    Mr. Delli Venneri. Well, you write a different law, right?1754One that doesn't compel--1755    Mr. Raskin. What is your solution?1756    Mr. Delli Venneri. My solution is that we're going to have1757to take a look at fair use. We're going to have to look at1758those factors. We're going to have to give some guidance to the1759court. I also want to, if I may, talk to what the--1760    Mr. Raskin. You mean change all the fair use doctrine?1761    Mr. Delli Venneri. Absolutely not. Just do it in such a way1762to help the court get to perhaps different decisions. Also,1763there's another couple of issues here that I--1764    Mr. Raskin. Well, do you disagree with Mr. Band that it's1765obviously fair use when people access what's been defined as a1766law in a particular jurisdiction? That's got to be fair use,1767right? That's what the courts are saying, as I understand it.1768    Mr. Delli Venneri. Well, that's really sort of an1769interesting question, OK?1770    First, the way that people use standards is to read them,1771right? To Ms. Ross' point, AI--forcing people to put their1772standards on the web, under the Anthropic decision, gives the1773Anthropic--the agentic agent the ability to read it and exposes1774us to all kinds of AI dangers, right? In certain respects, this1775bill goes in the wrong direction with respect to AI, No. 1, OK?1776    Second, think about the precept here. Everybody wants the1777public to have access to laws that govern them, right? The act1778that makes people compelled to follow laws is the act of the1779sovereign. What this bill basically says is that the sovereign1780has a duty to give fair notice to its citizens, and it's really1781saying, Oh, and by the way, we're not going to pay for that.1782We're going to compel the SDO--the private SDO to finance it1783through perhaps the loss of their standards.1784    If you think about it, who has that fair notice1785requirement? It's the State. You are now under this bill1786saying, OK, now you are ASME and you foot that bill, you lose1787the sale of your standards. There's real problems with the way1788that this bill is approaching it.1789    Mr. Raskin. Gotcha. Mr. Chair, I want to yield back. I am1790afraid I cutoff Mr. Kupferschmid. Maybe someone else--1791    Mr. Issa. If he has a short answer, he is certainly free to1792give it to us.1793    Mr. Kupferschmid. Yes. I will just say very quickly that,1794under fair use analysis, a court should look at has the SDO1795made it available to themselves, right? Is it publicly1796accessible already, the standard, and if it is, that should1797work against fair use. The problem is the courts don't really1798understand that or aren't using that.1799    Mr. Issa. I thank the gentleman and yield back. Mr. Fry.1800    Mr. Fry. Thank you, Mr. Chair, for having this hearing1801today.1802    Mr. Pauley, if Congress passes this act, in what ways would1803this be beneficial to the health and safety of our citizens? I1804think we're mired in kind of an exercise in intellectual1805property and kind of nuanced legal issues, but for people1806watching back home, or who may be tuning in, what is the1807practical effect for them?1808    Mr. Pauley. Well, look, thank you for the question. The1809practical effect, Representative Fry, is that, over this past1810century, we have shown that private sector standards1811development--those independent standards bodies--have produced1812standards that have been beneficial to the public.1813    Whether you want to look at it in the fire numbers that I1814quoted earlier and those reductions, or whether you want to1815look at it from across the spectrum of standards that people1816interact with every day--interoperability, safety standards,1817whatever those may be--the reason why we're sitting here1818today--and I would like to really reiterate this point. Nobody1819that has been involved along this process--the court cases and1820otherwise--has argued I don't have access to the standard as an1821individual that I need to access it.1822    We're here because commercial actors want to take the1823intellectual property that has been developed by folks like1824NFPA and others, and they want to use it for their purposes to1825generate revenue. That's why the court cases are in existence1826today. They are not here because we've had some access problems1827along the way with this.1828    That's an important point to remember because, if those1829commercial actors can take mine or any other SDO's intellectual1830property and use it the way that they want and make it fully1831available, I'm not going to survive.1832    I can certainly speak for NFPA, but, obviously, I'm biased.1833For a lot of other SDOs that deal with it as well, the public1834suffers if the private sector SDO community ends up going away1835in this process, and that is the reason why I think this is1836such a policy issue for Congress.1837    Mr. Fry. Pivot a little bit. Talk about the code and1838standard development process that you all have and maybe some1839of the associated costs that are involved in that.1840    Mr. Pauley. Yes. All of our costs when we look at--the vast1841majority of what costs we have as NFPA--and you can look at our1842revenue. You can look at our expenses across that entire1843spectrum. The vast majority of those costs are involved with1844that development and that distribution of those standards in1845some particular manner.1846    For a lot of people, they think of it in terms of, hey,1847look, doesn't somebody just got to put the words on a piece of1848paper? No, I have to have engineers that have to staff all1849those technical committees. I have IT groups that have the1850systems in place to do this. There is a cost every time we1851develop those standards.1852    I would reiterate, out of the 350 or so codes--1853    Mr. Fry. You mean it's not free?1854    Mr. Pauley. Yes. You are correct. It is not free. These are1855the costs that we incur every day, and they are important. We1856think they are important for society. We are self-funded, so if1857we're not generating revenue, I can't pay those bills.1858    Mr. Fry. Let me ask you something. We've been told that if1859we pass this it will create a system in which special interest1860lobbyists would have an effective veto over the health and1861safety standards in the country. Is this accurate?1862    Mr. Pauley. No, it's not accurate at all. I go back to the1863process that is so critical under the guise of open,1864transparent, and consensus-based processes. We put those1865processes in place, and we run those committees to keep special1866interests from having a sway over that particular committee.1867    Earlier, I mentioned--if you just want it in round1868numbers--in NFPA's case, no more than a third of the committee1869can be made up of an interest, and it takes two-thirds of the1870committee to actually change the document. The beauty of what1871we do is we bring people to the table to have them have debate.1872    Mr. Fry. Can you imagine doing that in Congress? My gosh.1873Two-thirds on anything, I don't know if we could do that.1874    If the Pro Codes Act was enacted, what steps would you all1875take to make sure that the codes and standards are accessible1876to the public?1877    Mr. Pauley. Well, this is probably in one case where NFPA1878probably has a little bit of an advantage only because we've1879been making all our codes and standards--not just those IBR,1880but all our codes and standards--available online for full1881public access for free for the last 20 years.1882    For us, we're trying to continue along down the path. I do1883think what our track record shows is that there is a way to do1884this, make public access available, and not suffer the loss of1885revenue, because professionals still purchase the document or1886purchase a subscription. I would just reiterate that's the1887beauty of this process. It's not taxpayer dollars that are1888funding it. It's not big industry dollars that are funding it.1889The cost of the system is spread out across the people that1890actually use the standards in their work every day. It's a1891beautiful public-private partnership in action.1892    Mr. Fry. Thank you for that. Mr. Chair, I see my time is1893up. I yield back.1894    Mr. Issa. Thank you. That just leaves me now to close this1895thing up, and I'm going to try and bring together as much as I1896can as quickly as I can. I appreciate, Mr. Pauley, that your1897organization is posting online, but as you can tell by Mr.1898Delli Venneri, he posts online but not the same way. His is not1899open and free. There are multiple models at work here.1900    Mr. Band, you haven't gotten enough attention, so I'm going1901to ask you. Do you think Napster was fair use?1902    Mr. Band. No.1903    Mr. Issa. OK. Fair use has its limit, right?1904    Mr. Band. Of course.1905    Mr. Issa. OK. When somebody monetizes somebody else's1906copyrighted material, that's not fair use, is it?1907    Mr. Band. Well, it depends, but in this situation--1908    Mr. Issa. Well, in the case of the two that are monetizing1909it now, they both have a form of monetizing in their formula.1910They are not giving it away without either collecting data or1911actually charging a subscription fee. Isn't that correct?1912    Mr. Band. I don't know exactly the--1913    Mr. Issa. Well, the lawsuits that were--1914    Mr. Band. Right. I'm not familiar with the UpCodes business1915model. I don't know the--1916    Mr. Issa. They collected 11 million in A round money. They1917have a subscription model--a premium subscription model to1918provide other people's material.1919    Mr. Band. Yes, but to some extent, that's something that1920the standards bodies could do themselves, and indeed--1921    Mr. Issa. Well, wait a second. Wait a second. They do it1922themselves. They have subscription models. They have programs.1923    I'll go back to Napster. In Napster, the recording industry1924didn't have to prove they were going out of business, although1925they sometimes allege that it would kill them. They only had to1926show the violation of the copyright.1927    Mr. Band. Right. The difference here is we're talking about1928the law.1929    Mr. Issa. Wait a second. We already went through this in1930detail. You are a taxpayer, I assume?1931    Mr. Band. Yes.1932    Mr. Issa. Have you ever read the Tax Code?1933    Mr. Band. God forbid.1934    Mr. Issa. Have you any idea what it would be like to try to1935comply with the law by only reading the Tax Code?1936    Mr. Band. No.1937    Mr. Issa. Doesn't everybody read supplemental copyright1938material to comply with the Tax Code?1939    Mr. Band. Yes.1940    Mr. Issa. Aren't these, as demonstrated at least briefly,1941in fact, supplemental materials as much as the law that they1942are how-tos and they are teaching and therefore--even if we1943were to narrowly say that--if you say that a--Mr. Massie wasn't1944here today--but, if you say that every three feet there has to1945be 110-volt plug to comply with the law in some jurisdiction,1946even if you say that, the rest of it is not, in fact, the law,1947is it? It's a how-to.1948    Mr. Band. As a general matter, that's right. That's why1949when Mr. Pauley holds up that book, I don't think--certainly1950not in my view and the view of my clients--that the whole book1951is not the law and therefore would not be freely available.1952That's also the advantage of--1953    Mr. Issa. That is one of the problems with the two that are1954monetizing it in lawsuits, is they are monetizing the entire1955code, including the how-to. They are not clawing through it.1956    Mr. Band. Right. If that's the case, then that's a problem.1957    Mr. Issa. In the case of Pro Codes, how do we define that1958in a way that provides guidance to the courts? This is really1959for you and Mr. Delli Venneri.1960    We are here trying to pass a law that, one, gives a safe1961haven to people who want to get access to information and1962provides clear guidance to the court. I've got two proponents1963and I've got two nonproponents. First, to be honest, one on the1964right of it and one on the left of it. You are not in1965agreement. You simply would like more than we're doing.1966    My question to you and the question that this dais needs as1967we go into our markup is: How do we preserve the copyright,1968which everyone is pretty well-agreed exists within these1969manuals, even if small portions are, quote, ``the law.'' How do1970we preserve that and provide guidance to the court, so they1971make consistent decisions, particularly as to this misguided1972interpretation of fair use?1973    Which I think I got your point that depends--a lot of these1974cases--when Mr. Pauley's stuff is online already, and then1975somebody monetizes a copy of it, where did the fair use get1976into that? They are simply duplicating and providing for1977revenue what he is already doing. It may be they are making it1978machine searchable, but, of course, that just means they are1979making it easier to take copyrighted material, isn't it?1980    Mr. Band. Well, the solution that I offered will really1981take care of your concern. In other words, if let's say1982Congress said that incorporated by--directly incorporated1983instead of incorporated by reference, then whatever was1984directly incorporated, that's the law, and whatever is not1985incorporated directly is not the law.1986    Mr. Issa. I agree with you.1987    Mr. Band. That would make a very clear distinction, whereas1988now--1989    Mr. Issa. For the other three that are actually putting1990stuff out to these municipalities, States, and so on, do you1991see them actually--if you give them, quote, ``the statute1992portion of it,'' do you see them actually doing it, and1993wouldn't it be burdensome economically for them to do so?1994    Mr. Band. I'm sorry. I don't understand the question.1995    Mr. Issa. Basically, what you are suggesting is that they1996take subsets of every one of these 45,000 different books and1997manuals and put them online and, of course, also print books1998and so on. That's what you are suggesting to comply.1999    Mr. Band. Well, the government has put them online, yes.2000    Mr. Issa. Right.2001    Mr. Delli Venneri, our suggestion that, in fact, a PDF be2002printable, not full machine searchable, AI advance--get2003everything you want and have it tell you how to write an2004application for a permit, because I know that's a concern of2005you that these codes can be turned into AI, producing an entire2006permit, and bypassing everybody with dubious accuracy.2007    Where is the middle ground? Because, for the Ranking Member2008who has left and for the Ranking Member of the Subcommittee, we2009need to know--we cannot--inaction is a problem. It's a big2010problem here because of those cases. We're going forward with2011action.2012    Mr. Pauley, I will commend that two-thirds are hard to get2013to. We got within one vote of it last Congress.2014    Mr. Delli Venneri. Mr. Chair, could I help? I mean you2015asked that question.2016    Mr. Issa. Please.2017    Mr. Delli Venneri. There are ways to deal with fair use in2018a relatively light manner, right, because folks--that turns2019into a real issue, right?2020    First, for example, there is the holding in the cases2021that--when somebody reads a standard to comply with the law or2022somebody reads a standard to comply with the--to use in the2023manufacturing--that suddenly that same standard is transformed,2024right? They say that it's transformative. Everybody reads the2025standard to comply with it, right?2026    One thing the Committee might want to think about is when2027you are looking at whether or not it's transformative, right?2028That's one approach, right, to have the courts go in a slightly2029different way.2030    There's another line of cases--and I disagree with Mr.2031Kupfer-schmid--in a case in the Fifth Circuit, which was an en2032banc decision called Veeck, but then recently followed in a2033case called CSA v. Knight--I think in 2024--where the court is2034making a more in-depth analysis, right, of what kind of2035standard is it? How is it going to be used? Is this a law of2036general application, or is this a law that governs nuclear2037facilities, right?2038    There are fragments in the case law that helps this2039Committee. There is also--if you look at the case law, there2040are certain doctrines that are now being built into fair use2041that has extended beyond its traditional parody news reporting2042type of things. It's turned into quite a different animal in2043the case law.2044    Putting some bumpers on those fair use is the right way to2045do it, but it still allows the court to make a decision--a just2046decision based on the specific facts.2047    Mr. Issa. I appreciate that.2048    As I close, I'll simply say that the bill is going to be2049amended as we bring it to the Committee. It will be an2050amendment in the form of a substitute. Many of you have given2051us input that we expect to already be in that. I would say that2052I would commend you all to engage and reengage if you have2053additional ideas.2054    I will say this in closing. If I had my way and I could2055speak to Chief Justice Roberts and he could speak to 6772056District Court judges, I would ask them to find fair use when2057somebody uses the information--wherever gleaned for purposes of2058compliance for themselves and to, in fact, not consider it fair2059use when it is reprinted for a monetization or some other use2060other than the historic, truly educational uses that often2061happen, as Ms. Ross said.2062    Now, I don't get to meet with the Chief Justice more than2063once a quarter, and when I do, Mr. Johnson and I are very2064brief. I don't expect to do it except through this upcoming2065law, and I would ask all of you to help us make that bill--2066which is the one we're talking about and we will get across the2067finish line by two-thirds--make it as good as we possibly can2068and meet compromises that do not compromise the concerns that2069we heard here today.2070    Then, as sometimes happens, I have a few UCs. I ask2071unanimous consent that the draft bill--or the bill, H.R. 4072,2072to be placed in the record for everyone.2073    Then, additionally, I have letters of support from another2074large group of organizations. First, I will not read them all--2075is the IEEE. I would ask all those be placed in the record.2076Without objection, so ordered.2077    Last, to be brief, I would also include the subscription2078information on UpCodes and how they do, in fact, find a way to2079monetize that, which is already, in the case of Mr. Pauley,2080freely given away.2081    Additionally, as we close, all Members may have five2082legislative days in which to include additional information. I2083would extend that to all our witnesses that they may also do2084it.2085    Last, if you receive within five legislative days2086additional questions, would you agree to answer them for the2087record?2088    All those responded in the affirmative.2089    With that, the Subcommittee stands adjourned.2090    [Whereupon, at 2:00 p.m., the Subcommittee was adjourned.]20912092    All materials submitted for the record by Members of the2093Subcommittee on Courts, Intellectual Property, and the Internet2094can2095be found at: https://docs.house.gov/Committee/Calendar/ByEvent2096.aspx?EventID=119195.20972098                              [all]