ARL Public Policy Briefing
March 2025
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Katherine Klosek, Director, Information Policy and Federal Relations, ARL
Contributions from the Canadian Association of Research Libraries (CARL) by Katherine McColgan, Manager, Administration and Programs, CARL
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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 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 issue of the Public Policy Briefing covers ARL letters to Congress advocating for strong support of the US National Archives and Records Administration (NARA). In February, ARL acknowledged Fair Use Week by hosting a congressional briefing on Capitol Hill. The Library Copyright Alliance (LCA) advocated for the US government to protect fair use rights in comments on a US AI Action Plan. LCA also recommended Israel adopt a clause prohibiting contracts from overriding fair use and other user rights in its copyright law. This month, the White House called for the elimination of the US Institute of Museum and Library Services.
In Canada, Mark Carney won the Liberal Party leadership election; key issues for the national election this spring between Carney and Conservative Party leader Pierre Poilievre include Canada-US relations and the economy. This month, CARL is preparing its response to the Tri-Agency Open Access Policy; read on for ways to share your comments on the policy. In response to a call for feedback on proposed amendments to the Accessible Canada Regulations, CARL advocated for accessible works for people with disabilities. CARL issued a statement reinforcing the importance of strong national archives. And CARL celebrated Fair Dealing Week with a webinar on “Fair Dealing and Creating Accessible Copies of Works for Disabled Persons.”
Read on for more details!
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Accessibility for People with Disabilities
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Copyright and Fair Use/Fair Dealing
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Federal Funding for Libraries
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ARL Advocates for Strong Support of US National Archives and Records Administration in Letters to Congress
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In letters to committees with appropriations and oversight jurisdiction over the National Archives and Records Administration (NARA), ARL asked Congress to protect NARA’s crucial role in safeguarding vital government records, and to take necessary steps to ensure NARA’s continued independence within the Executive Branch. The letters emphasized that ARL members in the US rely on NARA to serve their communities, and highlighted NARA’s critical work helping veterans access documentation needed to get critical benefits, digitizing information and making it available to the public, and declassifying documents. The letter followed the Administration’s abrupt firing of Archivist of the United States Colleen Shogan.
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CARL Issues Statement on the Value of National Archives
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On February 13, CARL issued a “Statement on the Value of National Archives” reminding Canadians and library patrons, more generally, of the critical responsibility national archives have in preserving and sustaining a nation’s collective memory. CARL highlighted the valued and fundamental role Libraries and Archives Canada has in supporting Canadian sovereignty, maintaining transparency and trust in government and in safeguarding a successful constitutional democracy.
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CARL Prepares Response to Tri-Agency Open Access Policy on Publications
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Canada’s federal research granting agencies—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)—released a “Draft, Revised Tri-Agency Open Access Policy on Publications” on February 25. The Tri-Agency is seeking feedback on the revised policy with submissions due on March 31. CARL intends to respond to the call for feedback and is currently engaged in stakeholder meetings in order to capture and reflect messaging from the library research community. If you have any comments regarding the policy that you would like to share, please contact Elizabeth Kalbfleisch at Elizabeth.Kalbfleisch@carl-abrc.ca or Mark Swartz at mark.swartz@queensu.ca.
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Accessibility for People with Disabilities
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CARL Advocates for Accessible Works for People with Disabilities
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CARL responded to a call for feedback on proposed amendments to the Accessible Canada Regulations. As an advocate for increased and equitable access to information for all Canadians, CARL supports the proposed changes that would ensure that technologies used by persons with disabilities can be used with government web pages, contemporary government publications issued as PDFs, and government apps. However, CARL’s submission cautioned the government on applying the same regulation and requirement to digitized archival materials - doing so would significantly slow digitization of archival collections and decrease overall access to the historical record. CARL encouraged the government to consider an exemption for archival materials and noted jurisdictions that have existing exemptions, such as the United States and European Union. CARL consulted with Libraries and Archives Canada and the Library of Parliament in writing the response.
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Mark Carney Wins Liberal Party Leadership Election
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In Canada, Mark Carney, former governor of the Bank of Canada and the Bank of England, definitively won the Liberal Party leadership with more than 85% of the votes cast during the March 9 election. Carney was subsequently sworn in as the prime minister of Canada on March 14, after which he immediately appointed a new cabinet. As anticipated the new cabinet is relatively small and includes returning ministers, seasoned leaders, and new members. Two departments that CARL works closely with—Canadian Heritage and Innovation, Science and Economic Development Canada—were appointed new ministers.
On Sunday, March 23, Carney asked the governor general to dissolve Parliament, calling a federal election. Canadians will head to the polls on April 28. Current polling indicates that it could be a competitive election race between the Liberals’ Mark Carney and the Conservative Party leader, Pierre Poilievre. Key election issues include Canada-US relations and the economy.
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Copyright and Fair Use/Fair Dealing
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ARL, CARL Celebrate Fair Use/Fair Dealing Week
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During Fair Use/Fair Dealing Week, Katherine Klosek moderated a conversation among Ali Sternburg, vice president, Information Policy, Computer & Communications Industry Association (CCIA); Brandon Butler, executive director, Re:Create Coalition; and Emily Sherwood, university librarian, Rochester Institute of Technology (RIT) Libraries, explaining to congressional staffers how fair use supports research, innovation, and economic growth. Read our recap on the ARL Views blog.
In celebration of Fair Dealing Week, CARL hosted a presentation by Rowan Meredith, an SJD candidate at the University of Toronto Faculty of Law, who also holds a JD in entertainment, media, and intellectual property law from UCLA (2018) and an LLM in media law from Queen Mary, University of London (2019). Meredith presented on “Beyond Marrakesh: Fair Dealing and Creating Accessible Copies of Works for Disabled Persons.” The presentation explored fair dealing jurisprudence in Canada and looked at whether and to what extent the creation of accessible copies can be understood as falling under fair dealing. Meredith’s presentation illustrated how the application of fair dealing could serve to mitigate the limitations that both Section 32 of the Canadian Copyright Act and Marrakesh Treaty place on libraries with respect to the creation of accessible copies.
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Library Copyright Alliance (LCA) Champions Fair Use Rights in Comments on US AI Action Plan
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In comments to the White House Office of Science and Technology Policy (OSTP), the Library Copyright Alliance encouraged the administration to safeguard fair use principles and prevent licensing restrictions from undermining these rights in a national “AI Action Plan.”
Fair use is an integral part of US copyright law, providing the legal foundation for AI researchers to collect and train content without permission from rightsholders. This competitive advantage has positioned the United States at the forefront of AI innovation globally. LCA recommends that the administration file amicus briefs in AI fair use cases arguing that AI’s public benefits substantially outweigh potential impacts on rightsholders. Should judicial rulings constrain generative AI development, LCA suggests that the administration request Congress to enact legislation to protect this technological advancement.
Additionally, LCA encourages the administration to submit amicus briefs arguing that contractual prohibitions on copying otherwise permitted by fair use in the AI context are not enforceable. If courts fail to uphold this principle, the administration should urge Congress to enact legislation to explicitly establish that fair use and other Copyright Act provisions take precedence over contradictory license terms.
The recommendations respond to a request for information by the Networking and Information Technology Research and Development (NITRD) National Coordination Office (NCO), National Science Foundation (NSF), on behalf of OSTP.
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LCA Recommends Israel Adopt Contract Override Prevention Clause for Libraries, Archives, Museums
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In comments to the Israel Ministry of Justice, the Library Copyright Alliance advocated for Israel to adopt a clause that would nullify contract terms purporting to prohibit activities by libraries, archives, and museums otherwise permitted under the Copyright Act.
Israel’s copyright law is among the more progressive in the world for libraries, archives, and museums (LAMs); it includes a fair use right, an exception for people with disabilities, and clear exceptions for libraries and archives. Additionally, the National Library Law permits the National Library to make additional copies for preservation beyond the conditions in the Copyright Act. Despite these protections for users, contracts can undermine the balance established in copyright law between rightsholder interests and the public.
The shift towards digital content distribution has led to publishers distributing content under licenses that frequently contain terms seeking to “override” copyright exceptions. But copyright laws in Singapore, the Cook Islands, Kuwait, Nigeria, and countries in the EU include contact override prevention clauses under which license terms that override specific exceptions are nullified. While the US Copyright Act lacks a comprehensive contact override prevention clause, the Library of Congress has promulgated a regulation that effectively nullifies license terms attempting to override copyright exceptions.
Israel’s Copyright Act currently does not include a contact override prevention (COP) clause. The Ministry of Justice has issued an opinion that, under the Standard Contracts Law, a clause prohibiting a permitted use under the Copyright Act is not enforceable in standard contracts. However, for negotiated agreements, the principle of freedom of contract prevails and such restrictions would be enforced.
LCA recommends that Israel adopt a COP clause applying to both negotiated and non-negotiated contracts entered into by libraries, archives, and museums. Many license agreements these institutions enter have some degree of negotiation and thus likely wouldn’t be considered standard contracts under the Standard Contracts Law. Such an amendment is necessary to ensure that LAMs can continue their historic mission of preserving and providing access to cultural heritage as it increasingly moves to digital formats. Without such protection, rightsholders could unilaterally undermine the exceptions and limitations adopted by the Knesset.
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Federal Funding for Libraries
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White House Executive Order Calls for Elimination of Non-statutory Components, Functions of Institute of Museum and Library Services
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The White House issued an executive order (EO) on March 14 calling for the elimination of the non-statutory components and functions of seven agencies, including the Institute of Museum and Library Services (IMLS) and the Woodrow Wilson International Center for Scholars in the Smithsonian Institution. The EO requires the heads of the agencies to explain to the Office of Management and Budget (OMB) which of their components or functions are statutorily required, and to what extent, within seven days of the order’s publication in the Federal Register. At this time it is unclear which components and functions of IMLS will be considered “non-statutory.” Furthermore, OMB is directed to zero out the budget requests for these agencies in the 2026 budget. If Congress agrees with the zero budget requests, the agencies would not be able to perform even statutory functions.
On March 24, members of the National Museum and Library Services Board sent a letter advising IMLS Acting Director Keith Sonderling that all grants, contracts, cooperative agreements, and awards that have been authorized by law and funded by congressional appropriations constitute statutory obligations.
IMLS is established by the Museum and Library Services Act (MLSA), which was reauthorized in 2018; the agency is due for reauthorization in 2025. IMLS administers the Library Services and Technology Act (LSTA), which funds the Grants to States; Native American and Native Hawaiian Library Services; National Leadership: Libraries; and Laura Bush 21st Century Librarian grant programs.
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Members of Congress Raise Concerns About US National Institutes of Health F&A Rate Cap
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In a hearing held by the House Science Subcommittee on Investigations and Oversight to “assess the current threat to the US research enterprise posed by malign foreign actors,” several members of Congress used their time to raise concerns about the devastating effect of the National Institutes of Health (NIH) cap on facilities & administrative (F&A) rates on the US research enterprise.
Rep. Luz Rivas (D-CA) explained how the drastic reduction in reimbursement would devastate research, inhibit patient access to treatment and clinical trials, and concede US competitiveness. In response to a question from Rep. Rivas, witness Maria Zuber, PhD, the E. A. Griswold Professor of Geophysics and presidential advisor for science and technology policy at MIT, explained that smaller schools would simply do less research. Rep. April McClain Delaney (D-MD) built on Rivas’s line of questioning, inquiring whether indirect rates contribute to university compliance with laws, including those related to research security. Zuber answered that these costs—including to comply with regulations related to research security—are part of research, and they need to be paid. Rep. Rivas signed a February letter to US Department of Health and Human Services (HHS) Secretary Robert F. Kennedy Jr. expressing concerns with NIH’s 15 percent cap on F&A rates.
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ARL, Higher Education Associations Request US Department of Education Rescind Dear Colleague Letter
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The US Department of Education issued a “Dear Colleague” letter on February 14 advising educational institutions to comply with the administration’s interpretation of Title VI of the Civil Rights Act of 1964. The letter cites the US Supreme Court’s 2023 decision in Students for Fair Admissions (SFFA) v. Harvard as a basis to prohibit educational institutions from acknowledging race in admissions, hiring, financial aid, or programming, or risk losing federal funding. Following the letter, the Department of Education posted a new FAQ document clarifying that educational, cultural, or historical observances would not violate Title VI.
ARL joined a February 25 letter by the American Council on Education (ACE) requesting the Department of Education rescind the “Dear Colleague” letter and engage with the higher education community to ensure a clear understanding of their legal obligations under Title VI and federal nondiscrimination law. The February 25 letter’s signatories include Campus Compact, COGR, and EDUCAUSE.
On March 5, national and local chapters of the American Civil Liberties Union (ACLU) and National Education Association (NEA) filed a lawsuit challenging the “Dear Colleague” letter. The lawsuit argues that the Department of Education overstepped its legal authority by limiting academic freedom, among other claims.
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ARL Endorses Affordable College Textbook Act
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Senator Dick Durbin (D-IL) introduced the Affordable College Textbook Act, which authorizes a competitive grant program to create and expand the sustainable use of open college textbooks. The bill would also improve and update existing requirements for publishers and institutions of higher education that provide information on textbook costs. ARL, SPARC, and Creative Commons were among the organizations that endorsed the bill.
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