ARL Public Policy Briefing
October/November 2024
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Katherine Klosek, Director, Information Policy and Federal Relations
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The monthly Public Policy Briefing highlights developments in ARL’s public policy priorities, issues that are relevant to the research library community in the United States and Canada, and details on advocacy conducted by ARL and the Canadian Association of Research Libraries (CARL). Please encourage your colleagues to sign up for the Public Policy Briefing.
If you have questions or suggestions, please email me at kklosek@arl.org.
Next year brings a new US presidential administration and Congress; as always, this public policy briefing will continue to cover how the administration’s priorities may affect research libraries.
This month, ARL sent a letter to the US White House Office of Science and Technology Policy (OSTP) affirming our commitment to working with the scholarly publishing community to improve digital accessibility. The updated Digital Millennium Copyright Act (DMCA) regulations are a mixed bag for proposals that the Library Copyright Alliance (LCA) supported; Librarian of Congress Carla Hayden expanded a text-and-data-mining exemption to allow researchers to share text and data mining corpora, but did not grant a petition to allow off-premises access to preserved video games, or permit more than one researcher to access preserved software. Register of Copyrights Shira Perlmutter testified before a Senate subcommittee on several library priorities, including AI and copyright.
CARL held their Fall Member Meeting in Ottawa, Ontario, November 18–20, where they heard from a wide range of speakers discussing Plan S, Canadian open science, the role of AI in academic libraries, and advancing accessibility initiatives in research libraries, especially exploring how these initiatives will influence CARL’s strategic focus. The CARL meeting was followed by the @Risk North 3 digital preservation summit that gathered 120 participants from across Canada to discuss ways in which libraries, archives, and museums can advance a collaborative national infrastructure and enhance skills and knowledge for the preservation of digital materials; a final report will be prepared with findings from the discussions and recommendations for moving forward. On October 31, CARL endorsed the Coalition for Canadian Digital Heritage (CCDH) Principles for Inclusive and Accessible Digital Heritage; the principles reflect the importance of collaboration, inclusivity, access, impact, and stewardship in advancing equitable and barrier-free access to Canadian digital heritage; CARL is a committed champion of open and equitable access and the principles align with CARL’s work in this area. Political instability continues at the federal level in Canada, and it does not appear as though much business is being conducted; CARL is continuing to meet with departmental officials as possible and has begun to consider strategies for engaging more with Conservative MPs.
Read on for more details!
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Copyright and Fair Use/Fair Dealing
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ARL Affirms Commitment to Digital Accessibility in Letter to White House Office of Science and Technology Policy
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ARL presented at an October 24 public forum hosted by the US White House Office of Science and Technology Policy (OSTP) on improving digital accessibility of science and technology publications. ARL’s presentation highlighted our historical commitment to the accessibility of library services and scholarly publications, and ways that ARL libraries work to make online learning content accessible, usable, and available for all students at the same time.
In a letter to OSTP, ARL affirmed our voluntary commitment to collaborating across the research and scholarly communications ecosystem to share resources and best practices for meeting Web Content Accessibility Guidelines 2.1 AA (WCAG 2.1), per the recently updated Americans with Disabilities Act (ADA) Title II Regulations. The letter highlighted ARL’s guide to the Title II regulations, and resources we have compiled along with the Library Accessibility Alliance and the Library Publishing Coalition.
Follow our Accessibility webpage for updates on ARL’s accessibility work.
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Copyright and Fair Use/Fair Dealing
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Canadian Government Passes Bills Amending the Copyright Act
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Two new pieces of relevant legislation received royal assent in Canada on November 7. Bill C-244: An Act to Amend the Copyright Act (Diagnosis, Maintenance and Repair) and Bill C C-294: An Act to amend the Copyright Act (interoperability) create new exceptions that permit the circumvention of a technological protection measure (TPM). Bill C-244 creates a new exception allowing for circumvention of TPMs for the purposes of “repair, maintenance and diagnosis.” Bill C-294 creates a new exception allowing circumvention to make any computerized device interoperable with any other computerized device or system.
Currently there are very limited grounds under which it is lawful to bypass or circumvent a TPM in Canada and CARL is encouraged to see the government recognize the need to provide legal assurances that it is appropriate to circumvent a TPM in cases where a user’s rights may otherwise be unduly constrained. CARL posted a memo about the passing of Bill C-244 on its website.
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Updated Digital Millennium Copyright Act Regulations Permit Researchers to Share Text-and-Data-Mining Corpora
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In October, the Librarian of Congress promulgated updated exemptions to the Digital Millennium Copyright Act (DMCA) prohibition on circumventing technological measures (TPMs) to access copyrighted works. The exemptions are based on recommendations developed by the US Copyright Office and the National Telecommunications and Information Administration (NTIA) during a rulemaking process that occurs every three years.
During this rulemaking cycle, the librarian granted an expansion to the exemption permitting researchers to circumvent TPMs to conduct text-and-data-mining (TDM) research on motion pictures and literary works. The Library Copyright Alliance (LCA) joined Authors Alliance and the American Association of University Professors (AAUP) in making the case that an expanded exemption will facilitate “research that reflects more diverse viewpoints, methods, and subjects.” In letters supporting the petition for expansion, researchers provided examples of TDM research that the current exemption has enabled, such as studies of banned books in the 21st century, and analysis of the representation of gender, race, and guns in films.
Under the expanded exemption, researchers affiliated with institutions of higher education can securely access TDM corpora hosted by another institution solely to conduct text-or-data-mining research or teaching. “Access” means providing outside researchers with credentials to use a corpus hosted on an institution’s own servers; it does not mean copying a corpus for local use. The exemption permits new, independent TDM research and teaching by outside researchers; under the previous exemption, researchers could only share corpora for collaboration on their own projects or to verify research findings. The updated exemption also clarifies that researchers should be able to view the contents of copyrighted works, provided any viewing that takes place is in furtherance of research objectives, such as processing or annotating works to prepare them for analysis.
During a series of hearings, researchers explained that machine learning powers TDM research, and that restricting generative AI could impede future research; the US Copyright Office agreed that the exemption should not include language specific to any particular research tool, including AI.
Further, under the expanded exemption, rightsholders or trade associations representing rightsholders may make inquiries into security measures, as long as those inquiries are supported by a “reasonable belief” that the rightsholders’ works are in a TDM research corpus.
For more on this exemption, see “The DMCA 1201 Rulemaking: Summary, Key Takeaways, and Other Items of Interest” by Authors Alliance.
LCA also joined the Software Preservation Network (SPN) in two petitions to expand preservation exemptions. One would have allowed more than one user to access computer programs preserved by libraries, archives, and museums, and the other would have permitted off-premises access to preserved video games. LCA and SPN argued that researchers could make noninfringing uses of the exemption, while opponents argued that these proposals would cause market harm.
The register of copyrights concluded that proponents of the expansion to the preservation exemptions did not demonstrate that they are likely to be noninfringing. The librarian of Congress agreed with the register’s recommendation. Because the expansion was not granted, scholars will continue to have to conduct in-person research at libraries, archives, and museums. The register also recommended clarifying that preservation institutions can allow a copy of a computer program to be accessed by as many individuals as there are circumvented copies legally owned, to address perceived ambiguity in the current exemption.
Earlier in the rulemaking, the Copyright Office issued a notice of its intent to recommend renewal of all but one of the existing exemptions; because no petition was filed for the exemption permitting circumvention of video games for use by people with disabilities, the office could not recommend the exemption to the librarian of Congress for renewal. LCA joined petitions in support of renewing the exemptions for text and data mining, preservation, captioning and/or audio description, and for the educational use of film and media excerpts. The librarian renewed all these exemptions.
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Register of Copyrights Testimony Before Senate Subcommittee Highlights AI, Other Library Priorities
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Register of Copyrights Shira Perlmutter testified in a November 13 oversight hearing before the Senate Judiciary Subcommittee on Intellectual Property.
In her written testimony, Perlmutter summarized the Copyright Office’s achievements in the two years since she last appeared before the committee, including updating components of the office’s registration and recordation system; working with the Department of Justice in preparing the US government views presented in copyright cases like Warner Chappell Music v. Nealy and Andy Warhol Foundation for the Visual Arts v. Goldsmith; the recent reauthorization of the Copyright Public Modernization Committee (CPMC), whose members represent two ARL libraries; and the Section 1201 rulemaking described above.
In fielding questions about training AI models on copyrighted works, Perlmutter responded that fair use is flexible enough to apply to new technology like AI training, and that the Copyright Office will address how a fair use analysis can be applied to training AI models in its upcoming report. Perlmutter also explained that other countries have specific exceptions in their copyright laws, which will likely apply to generative AI training, but, because the application of those exceptions to generative AI has not been tested in court, it is unclear whether they are more effective than the fair use doctrine in the US.
On the topic of site blocking, Senator Coons (D-DE) asked what the US Congress should look at as it considers legislation to address “piracy” of copyrighted streaming works. Perlmutter responded that some countries target site-blocking legislation specifically to websites that are dedicated to infringement, and narrowly focus injunctive relief so that it does not overreach and block access to information. Senator Coons—who was instrumental in passing the legislation that established the Copyright Claims Board (CCB)—also asked why the CCB has only decided a fraction of the claims that have been registered, to which Perlmutter said that many of the claims do not meet the statutory requirements.
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Announcements Related to Federal Research Granting Funding Agencies in Canada
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In November, there were a few announcements related to federal research granting funding agencies.
The Tri-Agencies (CIHR, SSHRC, NSERC) are transitioning to a new narrative-style CV for award competitions.The new CV will prioritize written descriptions of an applicant’s research contributions, allowing users to highlight a wide range of research outputs and to describe their career trajectories in more detail. This format values societal research outcomes, such as influence on policy or mentorship, alongside more traditional research outputs like publications.
The 2024 Federal Budget announced that the Government of Canada will undertake a restructuring of the federal research granting councils within a new Capstone Organization. Currently the Standing Committee on Science and Research (SRSR) is undertaking a study of the mission, mandate, role, and structure of this proposed organization. Following up on an earlier letter to the Tri-Agencies presidents, CARL is preparing a brief outlining its recommendations for how this new organization can best foster research innovation in Canada.
The Tri-Agencies are currently undertaking a review of their Open Access Policy on Publications. CARL has engaged in the review process through various feedback mechanisms but has currently turned its attention to practical considerations for implementation of a rights-retention strategy, as it has been suggested that this is the approach the Tri-Agencies are favoring.
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