ARL Public Policy Briefing
September 2024
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Katherine Klosek, Director, Information Policy and Federal Relations
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This month, ARL hosted a community conversation on the recent changes to Title II of the Americans with Disabilities Act (ADA) and the implications for libraries; expect to hear more about Title II in the coming months. In meetings with congressional staffers and coalition letters to congressional offices, we described how proposed legislation to regulate aspects of generative AI could impede research and free expression. And, higher education associations pushed back on a bill that would restrict the rights of public and private colleges and universities in the US to regulate speech on campus.
In recognition of the 100th anniversary of Canada’s Copyright Act, the Canadian Association of Research Libraries (CARL) participated in The Centennial Symposium organized by the Association littéraire et artistique internationale (ALAI) Canada. Also in Canada, CARL participated in consultations on AI compute, Budget 2025, and the Canadian Federation of Library Associations (CFLA) commented on the right to repair. In the courts, CARL is monitoring the first decision from Canadian courts that specifically considers the intersection of fair dealing and circumventing technical protection measures (TPMs). This month, CARL’s Copyright Community of Practice Call discussed whether users’ rights under the Copyright Act can be overridden by contracts, and how to avoid unnecessary restrictions in library activities.
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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Copyright and Fair Use/Fair Dealing
| ARL Hosts Community Call on ADA Title II and Research Libraries
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In April, the Federal Register published the US Department of Justice’s final rule on Title II of the Americans with Disabilities Act (ADA), which includes specific rules for state and local governments to ensure that web content and mobile applications are accessible to people with disabilities. Most entities have until April 2026 to comply with this regulation (smaller public entities have until April 2027). For more on Title II, see our resource ADA Title II Regulations: Implications for Libraries.
ARL hosted a recent discussion of experts from the research library and disability rights community about the updated ADA Title II regulations. (View a 90-minute video of the discussion.) After a brief overview of the regulations and exceptions, the group explored the types of library content and resources that might be affected by the regulations and exceptions, and offered recommendations for how your library can approach interpreting and implementing the regulations, with an emphasis on licensing born-accessible content.
ARL will continue to work with the Library Accessibility Alliance (LAA) and the American Library Association (ALA) on informing and educating the library community about Title II.
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CARL Participates in Consultation on AI Compute
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CARL submitted a brief on September 6 in response to public consultations by Innovation, Science and Economic Development Canada on artificial intelligence (AI) compute, that recommends, among other things, the importance of anchoring infrastructure and development for AI compute in public academic and research institutions, and facilitating public-private collaboration by leveraging experts from both sectors. CARL recommends that the forthcoming Artificial Intelligence and Data Act (AIDA) and any changes to existing legislation, such as the Copyright Act, must consider all stakeholders and not impede development and use of AI infrastructure and users of AI.
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Re:Create Coalition Raises Constitutional Concerns with NO FAKES Act
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Last month this briefing covered the NO FAKES Act, which the US Senate introduced to purportedly address harms caused by AI-generated deepfakes. In September, the US House of Representatives introduced its version of the NO FAKES Act. Both versions of NO FAKES raise constitutional issues that are described in a Re:Create Coalition white paper. The white paper states that the US Constitution prohibits Congress from granting copyright protection to unoriginal subject matter, such as an individual’s voice and likeness. The Re:Create Coalition reiterated these and other concerns in a letter to the Senate bill’s sponsors, and a statement on the introduction of NO FAKES in the House.
ARL will continue to track the COPIED Act, NO FAKES, and other AI legislation.
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Copyright and Fair Use/Fair Dealing
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ARL’s Advocacy and Public Policy Committee Discusses Fair Use and Licensing for AI Training
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Scholarly publishers (including Oxford, Wiley and Taylor & Francis) recently entered into license agreements giving AI platforms rights to train generative AI models on scholarly research. At the same time, scholarly publishers are introducing clauses in license agreements with libraries that restrict researchers from using generative AI with licensed works. To discuss these issues, copyright experts Dave Hansen, executive director of Authors Alliance, and Rachael Samberg, director of Scholarly Communication and Information Policy at UC Berkeley Library, joined the September meeting of ARL’s Advocacy and Public Policy Committee.
Hansen shared his perspective on why we are likely to continue to see licensing deals between publishers and AI firms, even if those firms would likely have a strong fair use claim in the US. First, while fair use protects computational, non-expressive uses of texts—such as training AI models to analyze large quantities of text and identify patterns—fair use is only available in the US (and a few other jurisdictions), so licenses may make sense for companies that are operating globally. Further, it is unclear how courts will decide the dozens of lawsuits about commercial AI applications. And, sometimes, licensed data is of higher quality than content that is scraped from the open web. Hansen suggested authors work with scholarly communications and copyright experts in their institutions’ libraries to understand their publishing contracts, and see if there are opportunities for attribution and remuneration, or to opt out of having their work licensed by their publisher for AI training.
Samberg explained why it’s important for libraries and scholars to carve out express AI-training rights for scholars in license agreements with vendors to avoid uncertainty. While many legal scholars believe that training AI is a fair use, some publishers might not. The AI copyright cases currently being litigated have arisen in the commercial context, so whatever happens with them can likely be distinguished from scholarly uses, but a publisher may not agree with such distinctions. A license agreement that merely preserves fair use without also identifying authorized AI uses may not go far enough to provide certainty and protection for scholars. Samberg recommended that librarians work with scholars to understand exactly how scholars are using AI, for example, whether they are using or training an AI model, whether the model is generative or non-generative, and if it is homegrown or third-party. Librarians can explain to publishers how their proposed clauses might foreclose some of the methods that scholars are using, and negotiate for express contractual allowance for AI training in license agreements. UC Berkeley Library’s sample language for a stand-alone text-and-data-mining (TDM) license can be a useful template for these negotiations.
ARL will continue to track developments in this space, and look for opportunities to keep members informed and shape and influence policy as appropriate.
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Copyright Updates from CARL
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CARL hosted the Copyright Community of Practice Call: “Contract Override in Academic Libraries” on September 25. A panel of legal scholars and library practitioners discussed whether users’ rights under the Copyright Act can be overridden by contracts and how to avoid unnecessary restrictions in our day-to-day activities. The panel resulted in a lively discussion of the key issues.
This year marks the 100th anniversary of Canada’s Copyright Act. In recognition of this important milestone, ALAI Canada, an organization based in creators’ rights, hosted The Centennial Symposium on September 19. CARL participated in the event that covered topics related to current economic rights; a historical overview of Canadian copyright law; the different actors of copyright; copyright law and other areas of the law, particularly communications and competition laws; and Canada vs. post-Brexit British Law, European law, and United States law.
CARL is monitoring the appeal of the May 2024 Federal Court decision in 1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney General), 2024 FC 829 (CanLII). This is the first decision from Canadian courts that specifically considers the intersection of fair dealing and circumventing technical protection measures (TPMs). The decision is favorable to libraries and the postsecondary education sectors as it affirmed the Supreme Court of Canada’s approach to fair dealing and the critical importance of it in striking a balance between user and creator rights. The decision also determined that passwords and paywalls are not TPMs per se and that TPMs and fair dealing are intended to exist in harmony.
CARL and the Library Copyright Alliance (LCA) signed the Access to Knowledge (A2K) Coalition letter on the Draft Implementation Plan on the Work Program on Limitations and Exceptions that expresses the importance to advance the limitations and exceptions and the concerns for the lack of progress in the work plan owing to the shift in focus by the committee toward the Broadcast Treaty.
On June 28, the Government of Canada launched a consultation on a right to repair. The Private Member’s Bill C-244, An Act to amend the Copyright Act (diagnosis, maintenance and repair) was adopted by the House on October 18, 2023. The consultation is intended to help inform the development of a federal policy approach and is focused on durability, repairability, and interoperability for home appliances and consumer electronics. The Canadian Federation of Library Associations (CFLA) has responded to the online consultation on behalf of the Canadian library community.
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Ruling in Hachette v. Internet Archive Favors Publishers
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The US Court of Appeals for the Second Circuit issued its decision in Hachette v. Internet Archive on September 4, affirming the judgment of the US District Court for the Southern District of New York, which held that Internet Archive’s practice of scanning and distributing books without authorization from copyright holders is not fair use. This decision will not affect the digital lending activities of most research libraries.
The case concerns Internet Archive’s (IA) Open Library, in which IA created digital copies of books that it owned and lent those digital copies out while restricting access to the physical copies. At the beginning of the Covid-19 pandemic, IA launched the National Emergency Library, in which it suspended the one-to-one loaned-to-owned ratio for the Open Library. In June of 2020, four major publishers (Hachette Book Group, HarperCollins, John Wiley & Sons, and Penguin Random House) filed a copyright infringement lawsuit against Internet Archive in the US District Court for the Southern District of New York.
The district court found that IA’s scanning and lending of complete books is not fair use, and IA appealed the ruling to the US Court of Appeals for the Second Circuit. The Library Copyright Alliance (LCA) filed an amicus brief in support of neither party. The LCA brief asked the court to preserve the fair use rights of libraries by correcting the District Court's error in characterizing Internet Archive’s use as commercial under the first factor of fair use, and urged the court to be mindful of the potential impact on the fair use ecosystem for libraries.
In its final decision against IA, the circuit court held that IA’s practice was not fair use; it also reversed the finding that IA’s use was commercial. As always, libraries should obtain legal counsel with respect to the impact of the decision on their current or future practices.
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Higher Education Associations Push Back on the End Woke Higher Education Act
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In September the US House of Representatives passed the End Woke Higher Education Act, which includes the Respecting the First Amendment on Campus Act, a bill that the American Council on Education (ACE) opposed during markup this spring and will continue to oppose.
Before the End Woke bill was passed, the Association of American Universities (AAU), the Association of Public and Land-grant Universities (APLU), and ACE urged House Speaker Mike Johnson (R-LA) and House Minority Leader Hakeem Jeffries (D-NY) to vote against the bill in a series of letters. AAU described how the Respecting the First Amendment on Campus Act would undermine public universities’ ability to implement time, place, and manner policies for campus expression. AAU urged Congress to protect colleges’ ability to implement such restrictions, which the Supreme Court upheld as constitutional. APLU explained that the First Amendment protects free speech on campuses of public universities, and the universities’ ability to implement “reasonable, viewpoint neutral restrictions to protect public safety and speakers while enabling their higher education mission.” ACE pointed out that the bill would create new counterproductive federal mandates, undermining the goals it seeks to advance. The White House issued a statement opposing the bill, and supporting the rights of public and private institutions of higher education to define their own values, consistent with students’ rights.
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