ARL Public Policy Briefing
January/February 2025
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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.
This January/February issue of the Public Policy Briefing includes an explanation of a recent US Copyright Office report, which concludes that US copyright law can address issues at the intersection of AI and copyright. During Copyright Week, ARL launched an open access, peer-reviewed licensing guidebook by five leading experts in licensing, which will serve as a critical tool to protect library rights in the face of restrictive license terms. Read on for information on how you can get involved in Fair Use/Fair Dealing Week, February 24–28! In a letter to Congress, the Re:Create Coalition amplified libraries’ priority of restoring fair use rights for digital works. Rep. Lofgren (D-CA) introduced a new site-blocking bill. And, this month brought a decision in the first major AI copyright case in the US, though it is unlikely to affect educational and research uses.
In US higher education news, a federal district court judge temporarily blocked the National Institutes of Health (NIH) from capping facilities and administrative (F&A) reimbursements at a rate of 15 percent following a lawsuit filed by Association of American Universities (AAU), American Council on Education (ACE), Association of Public and Land-grant Universities (APLU), and several universities.
In Canada, Justin Trudeau stepped down as leader of the Liberal Party on January 6, announcing that he would remain prime minister until the party completes its leadership race. The new leader is expected to be announced on March 9. Parliament remains prorogued until March 24; therefore all parliamentary activity, including legislation and committee work, is suspended. As a result, Bill C-63 (Online Harms) and Bill C-27 (Artificial Intelligence and Data) have died on the order paper.
There is a general sense that a federal election will be called in Canada shortly following the return of the House of Commons at the end of March, owing either to a no-confidence vote or to the Liberal Party calling a snap election. Current polling shows the Conservative Party is leading in the polls and will form government. CARL is working on its advocacy strategy and updating informational briefing notes to prepare for meeting with new people who will be assigned to relevant policy files.
CARL issued a statement in support of National Data Privacy Week (January 27–31).
Read on for more details!
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Copyright and Fair Use/Fair Dealing
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CARL Participates in AI Consultation
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In January, the Department of Canadian Heritage and Mila, a Montreal-based AI research institute, released the results of roundtable discussions that engaged cultural sector representatives and AI experts in exploring non-legislative tools and approaches to key issues AI has raised in the cultural sector. The discussions took place in October 2024 and focused on: transparency measures concerning the use of cultural content; data licensing, particularly in relation to cultural content; and data curation of open source and public domain cultural data. Details can be found in Mila’s What We Heard report. The roundtable discussions were intended to complement the Department of Canadian Heritage’s Survey on the Impacts of Artificial Intelligence in the Cultural Sector. CARL participated in the survey and the results are included in the subsequent Government of Canada’s What We Heard Report.
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Copyright and Fair Use/Fair Dealing
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ARL Welcomes US Copyright Office Report on AI and Copyright
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This month, ARL welcomed the US Copyright Office’s conclusion that US copyright law is sufficient to address issues related to the copyrightability of works generated with the assistance of AI, without the need for legislative change. This aligns with the Library Copyright Alliance (LCA) principles on copyright and AI, which assert that the current US Copyright Act—as interpreted by the Copyright Office and courts—is sufficient to address issues at the intersection of copyright and AI. The majority of public comments the Copyright Office received agreed that existing law is adequate in this area, including comments filed by LCA.
In Part 2 of its report on copyright and AI, the Copyright Office clarified that although copyright protection can apply to a work created by a human author that incorporates AI-generated material, it does not extend to works generated entirely by AI. The report elaborates on 2023 guidance reaffirming the office’s long-standing position that human authorship and original expression are essential requirements for copyright protection, based on principles of US copyright law. Since then, the office has registered human authors’ contributions to works that include AI-generated material in hundreds of works.
The Copyright Office evaluates works that involve AI on a case-by-case basis to determine whether the work reflects human authorship aided by technology, or if it is entirely machine-generated. In its January report, the office clarified that prompts alone do not provide enough human control to make an AI user the author of the output, as AI often fills in gaps unpredictably when no details are provided in the prompt. The office left open the possibility for a different conclusion if prompts sufficiently control expressive elements in AI-generated outputs to reflect human authorship. Additionally, the report clarified that copyright protection may extend to human-created expressive inputs that are perceptible in an AI output, as well as human modifications or arrangements of AI-generated content.
We anticipate Part 3 of the report later this year, which will address the question of whether training AI models on copyrighted works is fair use.
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ARL Launches Licensing Book During Copyright Week
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In January, ARL published a new book, e-Resource Licensing Explained: An A–Z Licensing Guidebook for Libraries, authored by:
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Sandra Enimil, Director of Scholarly Communication and Collection Strategy, Yale University Library;
- Rachael Samberg, Director, Scholarly Communication & Information Policy, UC Berkeley Library;
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Erik Limpitlaw, Digital Collections Licensing Librarian, Stanford University Libraries;
- Samantha Teremi, Licensing Librarian, UC Berkeley Library; and
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Katie Zimmerman, Director of Copyright Strategy, MIT Libraries.
This guide is an especially timely piece of our ongoing exploration of contractual override, as publishers are attempting to curtail researchers from training AI models on licensed e-resources. Through easily digestible legal explanations and pragmatic strategies for preserving rights that users already have under US copyright law, this guide will empower librarians to form a united front in negotiating for terms that protect the rights of libraries and the educational and scholarly functions they support.
ARL launched the book with a live webinar featuring the authors during Copyright Week. You can find highlights from the webinar in this ARL Views blog post: “Finally! A Licensing Guide to Help Libraries Protect Fair Use Rights in the Digital Age.” In case you missed it, watch a recording of a presentation with ARL and two of the book’s co-authors at the December 2024 Coalition for Networked Information (CNI) meeting.
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District Court Decision Unlikely to Affect Fair Use for Nonprofit/Educational Uses
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This month, a Delaware judge ruled in favor of Thomson Reuters in a copyright infringement case against Ross Intelligence. Thomson Reuters claimed that AI firm Ross Intelligence infringed its copyright by copying legal summaries from its platform to train Ross’s AI search tool. The judge ruled in favor of Thomas Reuters in his fair use analysis, giving particular weight to the fourth factor, the effect of the use on the potential market. Moreover, the judge stressed that Ross developed its tool to compete directly with Westlaw.
The case does not conflict with the position of the Library Copyright Alliance (LCA), which holds that “the ingestion of copyrighted works to create large language models or other AI training databases generally is a fair use.” Here, the facts are atypical; Ross targeted its copying on the Westlaw summaries for the purpose of training its AI to compete directly with Westlaw. The judge stressed that this fact pattern was distinct from that presented in a typical generative AI case. Additionally, the judge’s underlying conclusion that Westlaw’s summaries were protectable under US copyright law is itself questionable.
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Get Ready for Fair Use/Fair Dealing Week 2025!
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Please let us know what your library is planning for Fair Use/Fair Dealing Week 2025, February 24–28. This is the 12th annual celebration of the “balance in copyright law, promoting further progress, and accommodating freedom of speech and expression” that fair use and fair dealing represent. Submit your library’s events, blog posts, and other resources using this form, and we will include them on FairUseWeek.org!
Stay Engaged!
Highlighted Events:
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Update to Canada’s Fair Dealing Guidelines
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CARL hosted a call for Copyright Officers from member institutions to discuss an updated set of fair dealing guidelines put forward by Universities Canada (UC). The new guidelines are an update to the original 2012 version and were drafted to better reflect current practice and copyright administration in libraries. It is likely that many CARL members will adapt the UC guidelines to suit their institutional context.
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Access Copyright Releases Strategic Plan
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Access Copyright released a 2025–2028 Strategic Plan, signaling their interest in repairing relationships with educational institutions and “learning more about [their] current copyright management and licensing strategies.” The plan also outlines a shift away from a leadership role in copyright advocacy, turning its focus on supporting their members’ efforts.
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Re:Create Coalition Letter to Congress Amplifies Library Priorities
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In a letter to Congress, the Re:Create Coalition expressed support for a federal legislative solution that would prevent license agreements for digital works from nullifying fair use and other library rights. Such license terms can restrict libraries and their patrons from making full use of digital works, like computational research and preservation. The letter also listed specific legislation that Re:Create has opposed, including the NO FAKES Act, which would create a new licensable, transferable property right in AI-generated digital replicas that only the licensed user could control.
The Re:Create Coalition advocates for balanced copyright on behalf of ARL as well as other library associations, civil society groups, and technology companies and associations.
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Site-Blocking Bill Raises Concerns About Censorship of Copyrighted Content
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This month Rep. Zoe Lofgren (D-CA) introduced the Foreign Anti-Digital Piracy Act (FADPA), which would enable copyright holders to obtain court orders blocking access to “foreign” websites that allegedly infringe their rights under Section 106 of the US Copyright Act. Libraries and universities are exempt from blocking orders under the bill.
However, libraries and civil society groups remain concerned that empowering any rightsholder to block access to entire websites or internet service providers (ISPs) would unconstitutionally violate the constitutional right to free speech.
FADPA is supported by entertainment industry associations whose members are concerned about “piracy” of their content on overseas websites. But the law is not necessary because the US Copyright Act includes tools to protect against large-scale infringement. For example, Section 512 already requires service providers to adopt and implement policies to terminate “repeat infringers,” in exchange for “safe harbors” that limit their liability for infringement.
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US Federal Judge Pauses NIH Caps on Indirect Costs Nationwide
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On February 7, the US National Institutes of Health (NIH) issued supplemental guidance to its 2024 grants policy statement implementing a standard indirect rate of 15% across all NIH grants for indirect costs in lieu of a separately negotiated rate for indirect costs in every grant. A federal district court judge in Boston temporarily blocked the administration from reducing federal grants nationwide following a lawsuit filed by the Association of American Universities (AAU), Association of Public and Land-grant Universities (APLU), and the American Council on Education (ACE).
In anticipation of such a cap, COGR, AAU, APLU, Association of American Medical Colleges (AAMC), and Association of Independent Research Institutes (AIRI) updated their educational materials on cost reimbursement. See also infoDOCKET’s roundup of statements and coverage on the proposed cap.
In addition to the NIH cap, Rep. Ben Cline (R-VA) introduced a bill to impose limitations on the amount of indirect costs allowable under federal research awards to institutions of higher education.
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