The Pro Codes Bill (formally known as the Protecting and Enhancing Public Access to Codes Bill) is a proposed federal law to ensure that a model technical code or product standard (collectively referred to as a standard in the Pro Codes Bill and herein, unless otherwise noted) does not lose its copyright protection by virtue of having been incorporated by reference into a law, provided that the standard is available for free viewing on a publicly accessible website. 

The legislation was introduced in the U.S. Senate (S. 835, 118th Congress), on March 16, 2023 (https://bit.ly/3TO25Rr), and the U.S. House of Representatives (HR 1631, 118th Congress), on March 17, 2023 (https://bit.ly/3TO29k9). 

Currently, various state laws incorporate by reference the model technical codes (i.e., building, residential, plumbing, mechanical, fire protection and the like) but do not set them forth, word for word. This can make it difficult for the public to understand the law’s requirements. 

The model technical codes (and the product standards referenced therein) are typically considered original works of authorship entitled to copyright protection. The public may find itself having to pay the copyright holder or the standards development organization (SDO) that created the body of work for access to a code or product standard it is required to follow. 

Because the SDOs have spent money and volunteered hours of professional time to develop these standards for the sole purpose of having them adopted by a jurisdiction and incorporated into a law, the copyright protection allows them to recoup the cost of developing the standards. Being the exclusive seller of the standards means SDOs can deny the distribution of unauthorized copies of standards by third parties, who have argued to the courts that a standard loses its copyright protections under the “fair use doctrine” once it has been incorporated by reference into law. 

The issue of whether a standard maintains its copyright protection after it has been incorporated by reference into a law has been litigated for decades, and the courts have not reached a consensus. The Pro Codes legislation attempts to create a balance of these competing interests.

There are many codes and standards development organizations that the Pro Codes Bill, if enacted, will affect. 

The Need for Professionally Developed Technical Codes 

After our nation’s 1776 Declaration of Independence, there was concern about establishing too much authority in a centralized government. The 10th amendment to the U.S. Constitution, ratified on Dec. 15, 1791, clarified that “powers not specifically granted to the [f]ederal [g]overnment nor prohibited to the states by the Constitution are the dominion of the states or the people themselves.” 

As such, the power to regulate the design and construction of buildings was given to the state governments as a function of a state’s right to legislate to protect public health, safety, and welfare. A state may adopt a set of technical codes for the entire state. 

Some states require local entities to adopt the statewide codes; in other states, local entities may adopt other codes, may develop their own codes, may adopt a model code to which they can add local amendments, or, in rare instances, a local jurisdiction may not adopt any codes. 

In colonial times, building codes were enacted at the local level, with the impetus usually being a major fire or natural disaster. Around the time of the 1886 Chicago Fire and the 1906 San Francisco Earthquake, insurance companies (the folks footing the bill to rebuild) developed the “first” model code, or the Building Code Recommended by the National Board of Fire Underwriters. Free copies of this code and training support were provided to any jurisdictions wanting to adopt it. 

Later, the Building Officials and Codes Administrators, founded in 1915, and other organizations — the International Conference of Building Officials and the Southern Building Code Congress International — developed their own model codes to recommend to state and local governments. Mostly, states have not developed their own technical codes but rather have adopted all or part of the model technical codes; however, a few states and cities developed and maintained their own codes. 

The Need for Public Access to Codes

A state may adopt, as its law, all or some of a model building or technical code; however, when it does so, the law (state statute or city ordinance) will only set forth the name of the model code with its year edition; the law does not layout, word for word, the text of the model code, although state-specific amendments are generally outlined in the legislative bill. 

Like the model building or technical codes, which are updated regularly (e.g., every three years), states also update their laws to reflect their adoption of a newer version of a model code (with or without amendments). 

However, no consistency exists among the states regarding how often they update their building codes or which year version they adopt, and no general requirement that a state keep in lockstep with the output of newer code publications by the model code development organizations. 

The complete, printed code should be made available to the public at the local building department, practically speaking, to be informed of the code requirements — including those requirements currently in effect at that time and at a time in the past when an installation at issue may have been performed. 

The public must have access to the law to know which version of which model code was adopted by the state, as well as its effective dates, the state-specific amendments and the model code language, and be able to read them side-by-side. 

I understand that some third-party websites allow one to research the full text of a building or technical code adopted by a state, though one should always check for accuracy.

• Product Standards

A model building or technical code provides rules written as mandatory and enforceable language, with industry standards for the design, construction, alteration, materials, maintenance and performance of buildings. Some editions may incorporate additional building performance objectives such as energy efficiency or natural hazard resistance. 

Such codes also include specific references to product standard requirements in the body of the code; a “referenced standards” chapter is included in the back of each model code. By adopting a model building or technical code, the state also adopts the product standards referenced in and required by such code. 

I do not know of any third-party website providing access to these product standards to the public for free viewing, and the cost to purchase these product standards can be quite high. In my reading of the Pro Codes legislation, in its definition of “standard,” it would require the product standards and not only the technical codes to be made available for free viewing on a publicly accessible website. 

The Pro Codes Bill provides the following definition of the term “standard”:

“The term ‘standard’ means a standard or code that is —

“(A) a technical standard, as that term is defined in section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note); or

“(B) a voluntary consensus standard, as that term is used for the purposes of Circular A-119 (Note: as issued in revised form on January 27, 2016).”

In turn, section 12(d) of the National Technology Transfer and Advancement Act of 1995, in paragraph 4 thereof, defines “technical standard” as:

“DEFINITION OF TECHNICAL STANDARDS. [A]s used in this subsection, the term ‘technical standards’ means performance-based or design-specific technical specifications and related management systems practices.”

In turn, Circular A-119 (as far as I can find, given that a simple internet search pulls up many discussions on this circular A-119 but the circular A-119 itself appears elusive) defines the term “voluntary consensus standard” as a standard developed or adopted by voluntary consensus standards bodies, domestic and international. 

In my reading of the Pro Codes legislation, standard means both the model technical codes and product standards; however, in my brief internet review of discussions on the Pro Codes bill, it does not appear anyone has caught on that it requires the product standards incorporated by reference into the model technical codes (i.e., building, residential, plumbing, mechanical, fire protection and the like) also be made available for free viewing on a publicly accessible website.

Many reporters and commentators on the legislation use the terms standard and “code” interchangeably but with the intended meaning of both terms to be code, although copyright litigation has been brought by technical product standards development organizations and model code development organizations. 

For example, look at ASTM v. Pro, case no.: 13-cv-2015, District of Columbia Circuit Court, a copyright litigation against defendant Public.Resource.Org, Inc., brought by three plaintiffs: the American Society for Testing and Materials (ASTM); the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE); and the National Fire Protection Association (NFPA). 

In their complaint for injunctive relief, the plaintiffs define standards as follows: 

“12. The term ‘standards’ includes a wide variety of technical works ranging from codes to compilations of rules, test methods, interoperability standards, product specifications, installation standards, guidelines, and recommended practices. Standards can range in length from a few pages, such as ASTM E2877-12e1: Standard Guide for Digital Contact Thermometers, promulgated by ASTM International, to hundreds of pages, such as NFPA 70, National Electrical Code (‘National Electrical Code’ or ‘NEC’), promulgated by the NFPA.”

• Copyright Protection

The model code and standards development organizations do not develop these codes and standards themselves (i.e., by their employees). Rather, codes and standards are developed by a consensus of industry volunteers and lobbyists who attend the code and standards meetings (and hearings) to develop the concepts, requirements and specific language. 

Many organizations host these code/standards meetings in conjunction with their annual meetings and require every person submitting a proposed code change to sign a copyright release so the organization owns the copyright on the volunteer’s contributions. As such, codes and standards users include the very people who develop the code and standard language and who are not paid for their time. 

Note that, voting committee members are reimbursed up to a certain limit for certain travel-related expenses to attend the code hearings.

However, this is not to say that there isn’t substantial cost to the development organizations for staff to host and assemble codes and standards. For example, there are operational costs, including costs associated with meeting spaces, publications and following ANSI accreditation requirements for consensus codes and standards. 

In their complaint for injunctive relief (referenced previously), the three plaintiffs (ASTM, ASHRAE and NFPA) outlined the costs involved in developing their standards:

“46. The development of [high-quality], up-to date, voluntary consensus standards is costly. In addition to the value of the time and expertise contributed by the many volunteers who take part in the standards-development process, Plaintiffs expend substantial resources to provide the administrative, technical, and other support necessary to produce standards. Plaintiffs must pay for salary and benefits for administrative and expert staff, office space, meeting facilities, outreach and education efforts, information technology, and the cost of publication of their standards, among other things.

“47. The robust and open process followed by Plaintiffs, which includes multiple levels of review, opportunity for notice and comment, and representation from a diverse array of interests, is particularly costly to administer and coordinate. For example, NFPA has spent significant sums to build a computerized interface allowing for the online development and revision of standards. It also has increased the participation of underrepresented groups on its technical committees, such as by creating an Enforcer Funding Program to raise the percentage of government enforcement officials on the committees, during a time of public-sector budget cuts.”

The Model Technical Codes and Standards Development Organizations

With respect to the plumbing and mechanical industry, the following organizations publish model codes and product standards for adoption by local jurisdictions:

1. International Code Council, ICC (publisher of the international codes)

International Building Code (IBC) (covers building materials, structural strength, accessibility, energy conservation, and more); 

International Residential Code (IRC);

International Fire Code (IFC);

International Energy Conservation Code (IECC); 

International Plumbing Code (IPC); 

International Mechanical Code (IMC); 

International Fuel Gas Code (IFGC);

International Existing Building Code (IEBC); 

International Property Maintenance Code (IPMC); 

International Swimming Pool and Spa Code (ISPSC); 

International Private Sewage Disposal Code (IPSDC); 

International Zoning Code (IZC); 

International Wildland-Urban Interface Code (IWUIC); 

ICC Performance Code for Buildings and Facilities (ICCPC); 

International Green Construction Code (IgCC).

ICC hosted its second round of code hearings for Group “A” codes (plumbing, mechanical, fuel gas and residential codes), and other codes at its annual meeting, Oct. 22-30, 2024, at the Long Beach, Calif., Convention Center. The Group “B” code hearings will occur in 2025.

2. International Association of Plumbing & Mechanical Officials, IAPMO (publisher of the uniform codes)

Uniform Plumbing Code (UPC);

Uniform Mechanical Code (UMC); 

Uniform Swimming Pool, Spa & Hot Tub Code (USPSHTC); 

Uniform Solar, Hydronics & Geothermal Code (USHGC); 

National Standard Plumbing Code (NSPC) (Note: NSPC was recently taken over by IAPMO); 

2010 California Plumbing Code (2010 CPC).

IAPMO hosted its second round of comments on the plumbing and mechanical codes in Las Vegas, Oct. 24, 2024. I am finalizing this column as I sit in the hotel after the first hearings in Las Vegas. IAPMO will accept comments in January on these code hearings; a final hearing is set for May 2025 in Los Angeles.

3. The American Society of Sanitary Engineering, ASSE 

ASSE was founded by a group of inspectors from around the country who had gathered in Washington. In discussions about how plumbing was being done around the country, they saw the need for standardization of materials and methods of protecting the health and safety of the public. Since then, they have published many product standards; recently, they started publishing personnel certification standards.

You can find a list of ASSE standards at https://bit.ly/3BpxoLX.

4. National Fire Protection Association, NFPA

NFPA began developing codes and standards after a series of devastating urban fires in the late 19th and early 20th centuries, where many wooden structures were built in close proximity. Fires burning on windy days spread flames into major conflagrations that burned down large portions of urban cities. In many large American cities, such as New York, Pittsburgh, Chicago, Boston, Baltimore and San Francisco, fire officials stood in the ashes and tried to figure out a way to prevent these fires from happening again. 

Early civic leaders and insurance pioneers, such as Benjamin Franklin, suggested much wider streets for fire separations, fire-resistant materials and improvements in the fire service to minimize fire risk and the risk to insurance companies that would have large payouts for such conflagrations. These common-sense precautions were documented in NFPA’s “Fire Protection Handbook,” which was born out of the ashes of those fires. 

Later, NFPA developed these criteria into industry standards to address the fire and electrical hazards of the day. Today, the NFPA codes and standards include more than 300 publications. Below are a few selected standards and codes related to building construction (view the entire list at https://bit.ly/3ZI9aXl): 

NFPA 1, Fire Code;

NFPA 13, Standard for the Installation of Sprinkler Systems;

NFPA 13D, Standard for the Installation of Sprinkler Systems in One- and Two-Family Dwellings and Manufactured Homes;

NFPA 13R, Standard for the Installation of Sprinkler Systems in Low-Rise Residential Occupancies;

NFPA 14, Standard for the Installation of Standpipe and Hose Systems;

NFPA 20, Standard for the Installation of Stationary Pumps for Fire Protection;

NFPA 22, Standard for Water Tanks for Private Fire Protection;

NFPA 24, Standard for the Installation of Private Fire Service Mains and Their Appurtenances;

NFPA 25, Standard for the Inspection, Testing, and Maintenance of Water-Based Fire Protection Systems;

NFPA 30, Flammable and Combustible Liquids Code;

NFPA 54, National Fuel Gas Code;

NFPA 70, National Electrical Code;

NFPA 70A, National Electrical Code Requirements for One- and Two-Family Dwellings;

NFPA 99, Health Care Facilities Code;

NFPA 101, Life Safety Code;

NFPA 101B, Code for Means of Egress for Buildings and Structures;

NFPA 5000, Building Construction and Safety Code (Note: NFPA works with IAPMO to offer a building code).

5. American Society of Testing and Materials, ASTM

ASTM publishes product standards, many of which deal with pipe materials, fittings and valves. These product standards are referenced in the model plumbing codes, and then the model plumbing codes are adopted by states (or cities, as permitted by law), so both the codes and their referenced product standards become the law. 

You can research ASTM standards at https://bit.ly/3BsDBa8.

6. American Society of Heating, Refrigeration and Air Conditioning Engineers (ASHRAE)

ASHRAE publishes many product standards referenced in the model codes; view them at https://bit.ly/4eq8zOv.