The PRO Codes Act and the Perils of Surreptitious Compulsory Licensing
Congress’ latest foray into copyright and administrative law, the Promoting Responsible and Open Codes Act (PRO Codes Act), has surfaced a longrunning tension in the world of standards development. On its face, the bill appears benign—ensuring that, when private standards are incorporated by reference into law, citizens can access them for free. But beneath this promise lies a more complex and potentially destabilizing reality. Indeed, the act risks turning copyright from a stable property right into a conditional license, revocable whenever the government adopts a private work.
Sponsoring U.S. Reps. Darrell Issa (R-Calif.) and Deborah Ross (D-N.C.) have framed the PRO Codes Act as a measure to “protect public access to federal rules,” while maintaining incentives for innovation. They cast the bill as a balanced fix: transparency without expropriation. Supporters like the Copyright Alliance and the International Code Council echo that narrative, portraying the measure as essential to sustain the “public-private partnership” model of technical regulation.
But closer inspection reveals that the PRO Codes Act would dramatically reengineer the economics of standards development. The bill’s simplicity—free posting or loss of copyright—obscures the diversity of the standards ecosystem and the subtle legal balance that already governs it.