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No One Can Own the Law: How the Pro Codes Act Would Interfere with Public Access to the Law

ARL opposes the Pro Codes Act, which would affirm copyright ownership of elements of the law to private entities.

The Pro Codes Act would reverse the foundational legal principle known as the government edicts doctrine, which libraries rely on to provide meaningful access to government information for researchers, students, and the public. The doctrine holds that edicts of government are not subject to copyright, and that the law is in the public domain and must be available to all. Courts have affirmed that the government edicts doctrine applies to standards or codes that are incorporated by reference into law, and that “no one can own the law” (Georgia v. Public.Resource.Org).

The Pro Codes Act is not necessary to ensure free online access to the public of all standards that are incorporated by reference into law. Under existing copyright law, standards developed by private organizations and incorporated into public law can be freely disseminated without any liability for copyright infringement. Providing access to information advances the constitutional purpose of copyright, which is to “promote the progress of science and useful arts.”

Collecting, preserving, and providing public access to information is a core library function.  ARL’s membership includes 21 Federal depository libraries that serve as stewards for collecting, preserving, and providing free access for all users to Government information as part of the Federal Depository Library Program (FDLP). These libraries maintain free access to print and digital collections. In addition, information specialists are available at these libraries to assist researchers with locating Federal information. In 2011, the Administrative Conference of the United States specifically recommended that government agencies promote the availability of incorporated materials by making these materials available in libraries.

Rather than improving access, the Pro Codes Act would codify existing restrictive practices of standards development organizations (SDOs) that provide read-only access through websites with limited functionality, and require users to create an account or agree to terms of service of a to access material online. Libraries have long warned that terms of service and license agreements can restrict uses that copyright law would otherwise permit. 

The conditional copyright retention scheme that Pro Codes envisions would extend sole copyright ownership to SDOs over the law itself, allowing SDOs to further restrict users from downloading, printing, copying, annotating, translating, text-mining, incorporating into secondary works, sharing the standard with colleagues, or other lawful uses.

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