H.R. 1631 — what changed

“123. Works incorporated by reference into law

“(a) Definitions—In this section:

“(1) Circular A–119—The term Circular A–119 means Circular A–119 of the Office of Management and Budget entitled “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities”, issued in revised form on January 27, 2016.

“(2) Incorporated by reference

“(A) In general—The term incorporated by reference means, with respect to a standard, that the text of a Federal, State, local, or municipal law or regulation—

“(i) references all or part of the standard; and

“(ii) does not copy the text of that standard directly into that law or regulation.

“(B) Application—The creation or publication of a work that includes both the text of a law or regulation and all or part of a standard that has been incorporated by reference, as described in subparagraph (A), shall not affect the status of the standard as incorporated by reference under that subparagraph.

“(3) 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.

“(4) Standards development organization—The term standards development organization means a holder of a copyright under this title that plans, develops, establishes, or coordinates voluntary consensus standards using procedures that incorporate the attributes of openness, balance of interests, due process, an appeals process, and consensus in a manner consistent with the requirements of Circular A–119.

“(5) Publicly accessible online

changed “(A) In general—The term publicly accessible online, with respect to material, means that the material is displayed for review in a readily accessible manner on a public website.website that conforms with the accessibility requirements of section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d), including the regulations implementing that section as set forth in part 1194 of title 36, Code of Federal Regulations, or any successor regulation.

changed “(B) Rule of construction—If a user is required to create an account or agree to the terms of service of a website or organization in order to access material online, that requirement shall not be construed to render the material not publicly accessible online for the purposes of subparagraph (A), if there is no monetary cost to the user to access that material.if—

changed “(b) Standards incorporated by reference into law or regulation—A standard to which copyright protection subsists under section 102(a) at the time of its fixation shall retain such protection, notwithstanding that the standard “(i) there is incorporated by reference, if the applicable standards development organization, within a reasonable period of time after obtaining actual or constructive notice that the standard has been incorporated by reference, makes all portions of the standard so incorporated publicly accessible online at no monetary cost.cost to the user to access that material; and

added “(ii) no personally identifiable information collected pursuant to such a requirement is used without the affirmative and express consent of the user.

added “(b) Standards incorporated by reference into law or regulation—A standard to which copyright protection subsists under section 102(a) at the time of its fixation shall retain such protection, notwithstanding that the standard is incorporated by reference, if the applicable standards development organization, within a reasonable period of time after obtaining actual or constructive notice that the standard has been incorporated by reference, makes all portions of the standard so incorporated publicly accessible online at no monetary cost and in a format that includes a searchable table of contents and index, or equivalent aids to facilitate the location of specific content.

“(c) Burden of proof—In any proceeding in which a party asserts that a standards development organization has failed to comply with the requirements under subsection (b) for retaining copyright protection with respect to a standard, the burden of proof shall be on the party making that assertion to prove that the standards development organization has failed to comply with those requirements.”