PRO Codes Act: The Hidden Costs of ‘Free’ Standards
TL;DR
Background: The Promoting Responsible and Open Codes Act (PRO Codes Act) is framed as a transparency measure to ensure that standards incorporated into law are freely accessible. It would require standards-development organizations (SDOs) to post incorporated standards online at no cost or risk losing copyright protection. Supporters argue this guarantees public access to binding legal obligations.
But… Standards development relies on a delicate economic model. Most SDOs fund the costly, expert-driven creation and updating of technical standards through copyright revenues. The PRO Codes Act would condition copyright on government use, effectively converting a property right into a revocable license. Moreover, by treating all SDOs alike, it collapses distinctions between voluntary, expert-driven bodies and those that lobby for statutory adoption—risking the incentives that sustain the broader standards ecosystem.
Moreover… Courts already balance access and incentives through doctrines such as fair use and the government-edicts rule. These tools permit public dissemination, while preserving copyright. A sweeping statutory mandate would replace this flexible framework with a blunt rule—one that risks destabilizing standards development, reducing investment in technical expertise, and weakening U.S. leadership in global standards-setting.
KEY TAKEAWAYS
From Property Right to Permission Slip
The PRO Codes Act does more than expand access to the law. By tying copyright protection to whether a standard is incorporated into regulation, it effectively creates a zero-price compulsory-licensing regime. Government action becomes the trigger for extinguishing exclusivity, transforming copyright from a stable property right into a contingent one.
This shift extends beyond standards-setting. If Congress establishes that government use can condition or eliminate copyright protection, it sets a precedent for other domains where private works serve public functions. The result is not just greater access, but greater uncertainty about the durability of intellectual-property rights.
Over time, this conditionality could chill investment in complex, high-cost works that depend on predictable exclusivity for cost recovery—especially where government adoption is foreseeable.
One Size Fits None
Not all SDOs operate the same way. Voluntary-adoption organizations rely on expert consensus and copyright revenues, and regulators incorporate their standards by reference based on technical merit. By contrast, some organizations lobby for wholesale adoption and then monetize access. The PRO Codes Act targets perceived problems in the latter model, but imposes costs across the entire ecosystem—including organizations that do not control whether their standards are incorporated into law.
A more tailored approach would focus on the real issue: not the existence of copyright, but the interaction between lobbying for wholesale legal adoption and reliance on exclusivity. By failing to distinguish between these models, the PRO Codes Act risks solving a narrow problem with a broad rule.
That approach may blunt incentives for voluntary, expert-driven standards development while doing little to address the specific dynamics at issue. In effect, it replaces a problem of institutional design and incentives with a one-size-fits-all mandate.
Killing the Golden Geese
Standards are a classic public good. They require significant upfront investment, but cost almost nothing to distribute. Copyright provides the exclusion mechanism that enables cost recovery and cross-subsidization across thousands of standards, many with limited commercial demand. Remove that mechanism, and both the quantity and quality of future standards will likely decline.
The effects would be uneven but significant. Demand is highly skewed, with a small number of widely adopted “core” standards generating much of the revenue that supports the broader portfolio. If those standards are forced into free distribution, the cross-subsidy that sustains niche or emerging standards begins to unravel.
Over time, SDOs may shift resources toward projects with clearer funding paths or scale back updates and maintenance for less commercially viable standards. The result is not just fewer standards, but slower revision cycles and weaker technical quality—especially where up-to-date guidance is most critical.
From Scalpel to Sledgehammer
Existing case law has developed a nuanced framework. Courts allow free public dissemination of standards in certain contexts—particularly for nonprofit or educational uses—while preserving copyright protections more broadly. This case-by-case approach expands access without eliminating incentives. The PRO Codes Act would replace this calibrated system with a rigid statutory rule.
That flexibility matters because contexts differ. Courts distinguish between wholesale enactment of a code, incorporation by reference, nonprofit republication, and commercial reuse, tailoring outcomes accordingly. In some cases, they recognize fair use to ensure access; in others, they preserve copyright where needed to sustain the underlying enterprise.
This incremental approach allows doctrine to evolve alongside technology and market practices. A brightline statutory mandate, by contrast, risks displacing this adaptive framework with a one-directional solution that expands access while eliminating the legal tools courts use to balance competing interests.
Undermining Our Own Playbook
The PRO Codes Act is framed as a transparency reform, but it operates as a structural change to copyright. By addressing concerns tied to a subset of SDOs through a broad statutory rule, it risks undermining the economic foundation of standards development as a whole. A more measured approach would preserve existing legal doctrines that already balance public access with the incentives needed to sustain the system.
The United States benefits from a decentralized, private-sector-led standards system that draws on global expertise. Weakening its intellectual-property foundation could slow innovation, reduce participation, and cede influence to countries pursuing more centralized standards strategies.
This risk is not theoretical. U.S. leadership in standards-setting depends on private organizations’ ability to convene global experts and continuously update technically sophisticated frameworks at scale. The model attracts international participation because it operates at arm’s length from direct political control and relies on sustainable funding.
If those incentives weaken, participation may shift toward jurisdictions where standards development aligns more closely with state policy and industrial strategy. In that environment, technical standards can become tools of geopolitical competition, shaping supply chains, interoperability, and market access..
A policy that weakens U.S.-based SDOs could carry downstream effects on competitiveness, innovation ecosystems, and the global diffusion of U.S.-aligned technical norms.
For more on this topic, see the International Center for Law & Economics (ICLE) issue brief “SDOs, Copyright, and the Threat of Surreptitious Compulsory Licensing” by Kristian Stout.