ARL Public Policy Briefing
July/August 2024
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Katherine Klosek, Director, Information Policy and Federal Relations
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I hope you enjoyed the dog days of summer!
It’s been a busy summer for watchers of AI regulation, particularly on the issue of digital replicas, or digital elements of a person’s voice, image, or likeness. On July 31, Senator Coons (D-DE) introduced the NO FAKES Act to address the harms of digital replicas. The same day, the US Copyright Office issued its much-awaited report, in which the office recommends that a federal law is needed to address the harms of digital replicas. A few days after that, the Library Copyright Alliance (LCA) explained to the US Patent and Trademark Office (USPTO) why it would be unconstitutional to create a new intellectual property right for name, image, and likeness.
In other congressional news, libraries and civil society and other organizations successfully pushed back on a vote on the Pro Codes Act in the US House of Representatives. And a House panel included language that would restrict agency implementation of their public access policies in the Commerce, Justice, and Science (CJS) appropriations report.
In the courts, the Sixth Circuit Court of Appeals blocked net neutrality rules that would have allowed the Federal Communications Commission (FCC) to create and enforce clear rules for internet service providers (ISPs). And the DC Circuit Court rejected a constitutional challenge to the Digital Millennium Copyright Act (DMCA).
In July, the Canadian Association of Research Libraries (CARL) and ARL co-presented at the IDEAL Conference in Toronto. We shared our findings and recommendations from our work on the implementation of the Marrakesh Treaty and engaged participants to think about what their libraries are doing in support of the UN Sustainable Development Goals (SDGs) and how they could promote their work by contributing to IFLA’s Library Map of the World SDG storytelling. If you are interested in learning more, or contributing your library’s story to the map, please let me know (kklosek@arl.org)!
In Canada, CARL participated in consultations with the Canadian federal government on a number of library priorities, including open access policy, digital inclusion, modernizing Canada’s federal research support system, and such budget priorities as enhancing Canadian research capacity, funding for born-accessible materials for people with print disabilities, open educational resources (OERs) in postsecondary education, and funding for Library and Archives Canada.
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.
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CARL Consultations with Canadian Federal Government
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Copyright and Fair Use/Fair Dealing
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Open Internet and Online Privacy
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CARL Consultations with Canadian Federal Government
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Consultation to Develop National Infrastructure to Enhance and Support Digital Inclusion
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In mid-June, CARL participated in a roundtable consultation with members from Innovation, Science and Economic Development Canada (ISED) and various stakeholders to discuss a range of topics to develop a national infrastructure to enhance and support digital inclusion for all Canadians. The final report was submitted to ISED in July and highlights ways to reduce barriers by actively engaging with communities to enhance inclusivity and accessibility, address the high costs of internet connectivity in Canada, and increase digital literacy skills through education and resources.
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Consultation to Develop New Capstone Research Funding Organization
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In Budget 2024, the Government of Canada announced actions to modernize Canada’s federal research support system, one of which is to create a new capstone research funding organization. Canada’s existing “tri-agencies” (Canadian Institutes of Health Research, Natural Sciences and Engineering Research Council, and Social Sciences and Humanities Research Council) would continue under this organization, which will be designed to increase the impact of federal funding through better coordination to better meet and address emerging challenges. The Government of Canada asked the tri-agencies to consult with stakeholders to help develop the new infrastructure. CARL’s recommendations to the tri-agencies are to ensure the new organization actively fosters stronger harmonization across the existing agencies under a broad framework of open science; streamlines the federal granting agencies’ web presence and the grants application, management, adjudication, and monitoring/reporting system to better serve all disciplines, including implementing persistent identifiers (PIDs); finds ways to better and more sustainably fund common, necessary research infrastructure; and, strengthens policy, as well as policy monitoring and compliance in support of open science.
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Consultation in Advance of 2025 Budget
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On August 2, CARL submitted its brief in response to the Government of Canada’s Pre-Budget Consultations in Advance of the 2025 Budget. In its brief CARL is asking the government to increase funding to the Digital Research Alliance of Canada to enhance Canadian research capacity; renew funding for the Accessible Digital Books—Support for Organizations program within the Canada Book Fund to assist the Canadian publishing industry to create born-accessible materials for people with print disabilities; provide new funding through targeted federal agencies, to foster increased production and use of open educational resources (OERs) in postsecondary education, including targeted funding to support OERs in French; and, increase Library and Archives Canada’s base budget to optimize use of digital technologies and accelerate the transition of documentary heritage and federal government record-keeping to the digital environment.
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Copyright and Fair Use/Fair Dealing
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CARL Releases Navigating Copyright for Crown-Published Works: A Code of Best Practices for Libraries
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DC Circuit Rejects Constitutional Challenges to Digital Millennium Copyright Act
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In a decision this month, the US Court of Appeals for the District of Columbia Circuit rejected facial challenges to Section 1201 of the Digital Millennium Copyright Act (DMCA) in the case Matthew D. Green et al. v. US Department of Justice (DOJ) et al. (A facial challenge is a claim that a statute is unconstitutional at all times and under all circumstances.) Section 1201 prohibits the circumvention of technological protection measures (TPMs) to access copyrighted works, as well as the trafficking of tools to circumvent TPMs; every three years, petitioners can make the case to the Copyright Office to grant exceptions to these prohibitions.
The Electronic Frontier Foundation (EFF) has represented the plaintiffs—security researcher Matthew Green and technologist Andrew “bunnie” Huang—in challenging the constitutionality of Section 1201’s anti-circumvention and anti-trafficking provisions since this case began in 2016. In a previous round of litigation the Library Copyright Alliance (LCA)—the American Library Association (ALA) and ARL—joined a brief in support of the plaintiffs, making the case to the DC District Court that Section 1201 interferes with the constitutional rights of libraries and others who wish to engage in non-controversial fair uses protected by the First Amendment. The DC Circuit rejected the challenge to the constitutionality of Section 1201.
This time around, LCA joined the plaintiffs in urging the US Court of Appeals for the DC Circuit to recognize that Section 1201 violates the First Amendment’s speech protections by inhibiting fair use of copyrighted works that are encumbered by TPMs. Furthermore, as the Section 1201 rulemaking process is the only way to seek exemptions to its anti-circumvention prohibitions, its triennial frequency is unconstitutionally restrictive. In its August decision, the DC Circuit court rejected these challenges, holding that 1201 regulates “conduct” rather than “speech.”
One implication of this decision is that the ninth triennial Section 1201 rulemaking, which is currently underway, will continue. It is unclear whether the plaintiffs will appeal this ruling to the US Supreme Court. For more, see EFF’s write up of the decision, “Federal Appeals Court Rules That Fair Use May Be Narrowed to Serve Hollywood Profits.”
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Libraries, Civil Society Groups Beat Back Pro Codes Act in US House of Representatives
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The US House of Representatives fast-tracked a vote on the Pro Codes Act (H.R. 1631), which would extend copyright protection to elements of the law. Before the vote, ARL and a coalition of civil society organizations reached out to influential members of Congress to explain why we oppose the bill—namely, that government edicts such as standards that are incorporated by reference into law are not copyrightable as a matter of public policy. If the Pro Codes Act were to become law, a standards development organization would have exclusive rights to distribute, reproduce, or otherwise control use of standards that are incorporated by reference into law. The bill was defeated in the House.
Senator Coons (D-DE) inserted a Pro Codes amendment in the National Defense Authorization Act (NDAA), which ARL is tracking. The Re:Create Coalition issued a statement on the Pro Codes Act, which included this quote from ARL:
“Libraries preserve and provide access to government information, including laws and other government edicts that are not copyrightable. The Pro Codes Act would undermine libraries’ ability to provide access to codes and standards for public servants, researchers, students, and anyone who needs access to government information,” said Katherine Klosek, director of information policy and federal relations at the Association of Research Libraries.
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US Congress Introduces NO FAKES Bill to Address Potential Harms of AI-Generated Digital Replicas
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In July, Senators Coons (D-DE) and Blackburn (R-TN) officially introduced the NO FAKES Act, a bill that purports to address harms caused by AI-generated deepfakes. NO FAKES would create a property right under which the right holder can authorize the use of the voice or visual likeness of the individual in a digital replica. The right is licensable by the right holder, and can last up to 70 years after the death of the individual. Upon death, the right is transferable and licensable by the individual’s heirs.
Actual knowledge that a digital replica was not authorized by the right holder is required to incur liability, with exclusions if:
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the digital replica is produced or used in a bona fide news, public affairs, or sports broadbase or account;
- the digital replica is used in a documentary or in a historical or biographical manner, including some degree of fictionalization;
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the digital replica is produced or used consistent with the public interest in bona fide commentary, criticism, scholarship, satire, or parody;
- the use of the digital replica is fleeting or negligible; or
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the digital replica is used in an advertisement or commercial announcement for the above purposes.
The bill includes a safe harbor for online services that link to an unauthorized digital replica, as long as the online service removes the digital replica upon receiving a notification.
Libraries would not be covered under the bill’s definition of “online service,” which includes websites/online environments that predominantly provide a community forum for user-generated content. Nevertheless, when NO FAKES was introduced as a discussion draft last year, ARL shared suggestions with Senator Coons’s staff on how the bill could be crafted to avoid stifling research and scholarship. In addition to the constitutional points that the Library Copyright Alliance (LCA) made to the US Patent and Trademark Office (USPTO) (see below), ARL suggested that a federal law to address digital replicas should include robust, explicit, and flexible exclusions to allow for the exercise of free expression, as well as a dynamic evaluation of factors similar to the fair use analysis.
In a statement, the Re:Create Coalition pointed out how the proposed new federal IP scheme would shrink the public domain, undermine Section 230, and threaten free expression online, and urged the US Congress to consider how the bill would affect the open internet, free speech, and the future of creativity. While the US Congress has introduced hundreds of bills to address AI, regulating deepfakes is an issue that has received more traction and attention. ARL will continue to work with other stakeholders to ensure that laws regulating deepfakes address specific harms without stifling free expression, particularly for nonprofit scholarly uses.
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US Copyright Office Recommends New Federal Law to Address Harms of AI-Generated Digital Replicas
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In July, the US Copyright Office (USCO) issued part one of its much-awaited report, Copyright and Artificial Intelligence, focused on digital replicas. In the report, the office defines a digital replica as “a video, image, or audio recording that has been digitally created or manipulated to realistically but falsely depict an individual.” Upon reviewing existing state and federal laws, the Copyright Office concludes that a new federal law is necessary to fill in gaps and address the potential harms that may be caused by digital replicas.
Among its recommendations for how such a law might be crafted, the Copyright Office suggested that Congress address First Amendment concerns using a balancing framework, rather than categorical exceptions, to allow flexibility and avoid overbreadth. ARL has suggested that any digital replica bill include specific circumstances under which a digital replica may be used without authorization, as well as an open-ended framework to evaluate uses, in order to avoid chilling nonprofit education uses.
The Copyright Office also advised Congress to exclude digital replicas from the intellectual property exemption of Section 230 to encourage online platforms to promptly remove unauthorized digital replicas. ARL has pushed back on this concept, making the point that introducing liability to libraries and other interactive computer services for claims that are unrelated to IP issues could stifle free speech online.
The report is part of the USCO initiative to examine the copyright issues raised by AI. The Library Copyright Alliance (LCA) has offered verbal testimony and written comments explaining our position: copyright law is robust and flexible enough to address issues at the intersection of copyright and AI, and that no new legislation is needed at this time. The Copyright Office plans to issue two more parts of the report before the end of the year; part two will focus on copyrightability of works that include AI-generated material, and part three will address whether ingesting copyrighted works to train AI models is fair use, and questions of infringing outputs.
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Library Copyright Alliance Argues Name, Image, and Likeness Protections Should Not Be IP Rights
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During a panel convened by the US Patent and Trademark Office (USPTO) on AI and protecting and individuals from the unauthorized use of their name, image, and likeness, the Library Copyright Alliance (LCA) argued that Congress cannot grant IP protection to unoriginal subject matter like an individual’s voice and likeness under the Intellectual Property Clause or the Commerce Clause of the US Constitution. However, Congress does have the ability to enact narrow laws to prevent the harms of AI-generated deepfakes, as long as they do not create a new property right. The Re:Create Coalition was also represented on the panel. Re:Create Executive Director Brandon Butler explained that, while there are harms from digital replicas, there are also benefits to teaching and research. Butler suggested that USPTO and lawmakers consider the downside of regulating deepfakes, and ensure that any regulation addresses specific harms.
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Canada’s Federal Granting Agencies Release Report on Open Access Consultations
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The Canadian Institutes of Health Research (CIHR), the Natural Sciences and Engineering Research Council of Canada (NSERC), and the Social Sciences and Humanities Research Council of Canada (SSHRC)—known as the tri-agencies—released the What We Heard Report: Engagements on the review of the Tri-Agency Open Access Policy on Publications (2024) in late July. The report summarizes feedback received from a wide range of stakeholders who engaged in the tri-agency consultation process on their plans to revise the Tri-Agency Open Access Policy on Publications. The Canadian Association of Research Libraries (CARL) participated in the consultation and the report highlights a number of topics that are relevant to CARL’s work. The report also provides interesting insights on stakeholder perspectives.
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US House Panel Inserts Language Restricting Public Access into Commerce, Justice, and Science Appropriations Report
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In a report accompanying the House Commerce, Justice, and Science (CJS) appropriations bill, the House Appropriations CJS Subcommittee included language that could chill the ability of federal agencies to implement their public access policies by inhibiting their use of the federal purpose license:
Federally Funded Research.—The Committee is concerned that under OSTP’s direction in implementing the August 2022 memo entitled ‘‘Ensuring Free, Immediate, and Equitable Access to Federally Funded Research’’ agencies may be violating this principle. OSTP shall clarify its guidance to agencies and instruct them not to limit grant recipients’ ability to copyright, freely license, or control their works. Agencies shall not exert broad ‘‘Federal purpose’’ authority over peer reviewed articles or other written material reporting on Federally funded research under 2 Fed. Reg. 200, or future guidance, or otherwise force use of an open license. Researchers should have the right to choose how and where they publish or communicate their research and should not be forced to disseminate their research in ways or under licenses that could harm its integrity or lead to its modification without their express consent.
Open Access.—When considering existing or future open or public access policies, the Committee directs NSF to refrain from issuing guidance, restrictions, or otherwise limiting the ability of extramural grant recipients to freely license or control their written works, including under 2 Fed. Reg. 200 or guidance on ‘‘federal purpose’’ from the Office of Management and Budget (OMB).
You may recall that the CJS appropriations bill also included language that would obstruct implementation of public access:
SEC. 552. None of the funds made available by this or any other Act may be used to implement, administer, apply, enforce, or carry out the Office of Science and Technology Policy’s August 25, 2022, Memorandum to Executive Departments and Agencies entitled ‘‘Ensuring Free, Immediate, and Equitable Access to Federally Funded Research.’’
Language in reports that accompany appropriations bills are not legally binding, but they offer directions to agencies. Nevertheless, the language in the appropriations bill and the accompanying report have the potential to impede the Biden-Harris administration’s public access policy. For more information on this issue, and to see how you can take action, please contact Katie Steen-James, manager of Public Policy & Advocacy at SPARC (katie@sparcopen.org).
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Open Internet and Online Privacy
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US Court Temporarily Blocks Net Neutrality Regulations
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In response to a petition by internet service providers (ISPs), the US Court of Appeals for the Sixth Circuit temporarily blocked the net neutrality regulations promulgated by the Federal Communications Commission (FCC) from taking effect until the court reviews the final rule.
According to the court, it is likely that the ISPs will succeed on the merits, as the final rule “implicates a major question, and the Commission has failed to satisfy the high bar for imposing such regulations.” Under the major questions doctrine, agency actions on issues of major national significance must be supported by clear congressional authorization; if challenged, courts may review agency interpretations to determine if an agency exceeded its authority.
In April of 2024, the FCC voted to classify public broadband internet access service as a telecommunications service under Title II of the Communications Act. The reclassification allows the FCC to create and enforce clear rules for ISPs to prevent them from blocking access to lawful content and devices, slowing down data traffic, or creating pay-to-play internet fast lanes. The commission also retained its long-standing policy of excluding private end-user networks like libraries and universities from the definition of broadband internet access service. In comments last December, ARL and EDUCAUSE explained to the FCC why an open internet is critical for colleges, universities, and research libraries to best serve the vital public interests at the core of their missions.
If the court does not uphold the net neutrality rule, Congress could take legislative action to reinstate net neutrality protections; ARL has endorsed such legislation.
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