U.S. Senate Reintroduces Pro Codes Act: Safety Standards Copyright Debate Returns as SDOs and Public Interest Groups Clash

The U.S. Senate saw the reintroduction on March 19, 2026 of the Protecting and Enhancing Public Access to Codes Act of 2026 (Pro Codes Act, S. 4145), a bipartisan bill co-sponsored by Senators Jon Cornyn (R-TX), Chris Coons (D-DE), Mazie Hirono (D-HI), and Thom Tillis (R-NC). The legislation aims to ensure that privately developed safety standards do not lose copyright protection when they are incorporated by reference into federal or state law—provided the standards remain freely accessible online. The bill has been introduced in multiple prior congressional sessions without success, and the fundamental divide between standards-developing organizations (SDOs) and public interest advocates remains unresolved.

The debate centers on a long-standing tension in administrative law: when private technical codes become legally binding through incorporation by reference, do they enter the public domain? Courts have provided inconsistent answers, and the Pro Codes Act represents an attempt to resolve the question legislatively.

What the Bill Does

The Pro Codes Act would codify that incorporation of a safety standard into law by name does not divest the SDO of copyright protection in that standard, as long as the full text is freely available on a publicly accessible website. The sponsors describe this as a balanced approach: public accessibility is mandated, but the copyright that funds standard development is preserved.

Standards like the National Electrical Code, International Building Code, or NFPA fire safety standards are developed by private organizations but frequently adopted wholesale by federal agencies or state legislatures. In many jurisdictions, compliance with these codes is legally required. The question of whether such codes—once they become law—remain protected by copyright has generated significant litigation and scholarly debate.

The Case for Copyright Protection

The Copyright Alliance, along with the National Fire Protection Association (NFPA) and the International Code Council (ICC), backs the legislation. Copyright Alliance CEO Keith Kupferschmid argued that “without effective copyright protections, there is a grave risk that these organizations will no longer be able to produce the high-quality codes and standards that the public and lawmakers have come to rely on.”

The economic argument is straightforward: SDOs are typically nonprofit or quasi-public bodies that fund their operations largely through sales and licensing of their standards documents. If those documents enter the public domain upon legislative incorporation, the revenue model collapses. Supporters contend that the public interest in reliable, regularly updated safety standards depends on maintaining the financial viability of the organizations that create them. A deterioration in standard quality due to funding shortfalls, they argue, would ultimately harm public safety.

The Case Against: Laws Must Be Public

Opponents take an equally principled stance. Public Knowledge’s Meredith Rose characterized the bill as “a naked attempt to put laws that impact every citizen behind a paywall.” The American Society of Mechanical Engineers (ASME) and the Association of Research Libraries have also registered opposition.

The core objection is democratic: if a safety code has the force of law, it is—functionally—law, and law should be freely accessible to the citizens it governs. A building contractor, a fire safety inspector, or an ordinary homeowner subject to code requirements should not have to pay for access to the legal obligations imposed on them. Critics also argue that the bill’s “free online access” condition is insufficient—access can be restricted to read-only formats, prohibiting the copying or distribution needed for practical compliance work.

A Recurring Stalemate

The Pro Codes Act’s repeated failure to advance reflects the depth of this disagreement. Neither side has found a compromise formula that fully satisfies both the access principle and the funding imperative. The bill’s current free-access-plus-copyright formulation attempts a middle path, but opponents argue that copyright protection without copying rights is not meaningful public access.

Notably, Senator Thom Tillis—one of the bill’s co-sponsors—also appeared at the CSIS LeadershIP 2026 conference on March 25, 2026, where DOJ Antitrust Deputy AAG Dina Kallay made her own notable IP policy statements. Senator Tillis is among the most active IP legislators on Capitol Hill, with involvement spanning patent, copyright, and trademark reform.

Implications for IP Practice

The Pro Codes Act presents a test case for the broader question of how intellectual property law accommodates the public domain interest in legal texts. If enacted, it would provide long-sought clarity for SDOs regarding the copyright status of incorporated standards. If it fails again, the question will remain subject to litigation—most likely in the Ninth and D.C. Circuits, where the leading cases have been decided.

Companies and law firms that rely on, license, or sell access to safety standards should track the bill’s progress. In the event of further judicial activity on incorporated standards, the absence of a definitive legislative resolution could create uncertainty in sectors from construction and manufacturing to electrical infrastructure and fire safety compliance.