ARL Public Policy Briefing

Summer 2023

Katherine Klosek, Director of Information Policy and Federal Relations

This issue of the Public Policy Briefing describes ARL's advocacy against language in a US federal appropriations bill that would disallow federal funding from being used to provide public access to taxpayer-funded research. We also report on ARL joining higher education associations in asking Congressional appropriators to fund education at the highest level possible. Following a Senate Judiciary Subcommittee hearing on copyright and AI, ARL developed an explainer to shape Congress’s ongoing conversations about a potential federal publicity right. The Library Copyright Alliance (LCA) submitted its AI and copyright principles to the US Office of Science and Technology Policy (OSTP) in response to its request for information around national priorities for artificial intelligence. LCA supported petitions to the US Copyright Office for continued access to copyrighted works. The US Court of Appeals for the Ninth Circuit issued a favorable ruling for balanced copyright and access to knowledge; LCA joined an amicus brief filed by the Electronic Frontier Foundation (EFF) on the prevailing side.

In Canada, the Canadian Association of Research Libraries (CARL) petitioned the federal government to invest in higher education and library priorities, including open educational resources, increased investment for Libraries and Archives Canada digitization processes, continued support for accessible publishing, artificial intelligence monitoring, and national digital research infrastructure. And, CARL issued a statement pushing back on the narrative that Canadian authors would be better paid if the educational purpose of fair dealing was removed from the Copyright Act. In its statement, CARL describes that universities pay license fees for the majority of course materials, and rely on educational fair dealing guidelines for materials that are subject to fair dealing.

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 ARL and CARL advocacy. Please encourage your colleagues to sign up for the Public Policy Briefing.

If you have questions or suggestions, please contact me at kklosek@arl.org.

In This Issue

• Appropriations Update

  • ARL Opposes Appropriations Language That Would Defund Public Access to Research in the US

  • ARL Joins Higher Education Associations in Calling on Congress to Allocate Full Funding for Education

  • CARL Advocates for Funding and Support for Higher Education and Library Priorities

• Copyright and Fair Use/Fair Dealing

  • ARL to Congress: Federal Right of Publicity Might Address AI Concerns While Protecting Free Expression

  • CARL Responds to Recent Media Coverage on Educational Copying

  • Change to Key Minister for Canada’s Copyright Act

  • Library Copyright Alliance Submits AI & Copyright Principles to US Office of Science and Technology Policy

  • LCA Petitions US Copyright Office for Continued Access to Copyrighted Works

  • In a Win for Access to Knowledge, Circuit Court Affirms Server Test

  • LCA Supports South Africa Copyright Amendment Bill in Comments to US Trade Representative

  • Judge Orders Permanent Injunction in Hachette v. Internet Archive

Appropriations Update 

There are just over two weeks until current federal funding levels expire on September 30. 

ARL Opposes Appropriations Language That Would Defund Public Access to Research in the US

The House appropriations subcommittee with responsibility for funding most US science agencies proposed language that would block the use of federal funds for implementation of the August 2022 Nelson memorandum on “Ensuring Free, Immediate, and Equitable Access to Federally Funded Research”; the memo provides federal agencies with guidance on making federally funded research available to the public with no embargo.

The troublesome language can be found on page 128 of the appropriations bill:

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.”

ARL sent this letter to Congressional appropriations leaders on August 3.

ARL Joins Higher Education Associations in Calling on Congress to Allocate Full Funding for Education

The House appropriations committee responsible for funding federal education programs signaled its intention to eliminate funding for the Federal Work-Study and the Federal Supplemental Educational Opportunity Grant programs, and to disinvest in other higher education priorities.

ARL joined a letter by the American Council on Education (ACE) opposing the elimination of the Historically Black Colleges and Universities (HBCUs), Tribal Colleges and Universities, and Minority-Serving Institutions’ Research and Development Infrastructure Grant program; the reduction of funding for Title VI International Education; and the elimination of the federal student aid programs. The letter asks Congress to increase the federal funding allocations to the highest levels possible given the current funding cap.

The House panel has not made the details of its funding proposals available, but it will certainly clash with the Senate’s education funding bill. The House would fund the Department of Education at a level 15 percent lower than in FY 2023, and would cut funding for the department’s Office of Civil Rights by 25 percent. The House would not eliminate or decrease the Pell Grant. In contrast, the Senate-passed bill includes a $250 increase to the maximum Pell Grant, for a total of $7,645 in the 2024–2025 school year.

CARL Advocates for Funding and Support for Higher Education and Library Priorities

The Canadian Association of Research Libraries (CARL) participated in the Canadian federal government’s 2024 pre-budget consultation. In the August 2023 brief to the House of Commons Standing Committee on Finance, CARL reiterated the need for funding initiatives through targeted federal agencies to foster increased production and use of open educational resources (OERs) in postsecondary education and an increase to Library and Archives Canada’s base budget to accelerate transition of documentary heritage and federal government record-keeping to the digital environment. In addition, CARL called on the government to continue current funding within the Canada Book Fund to assist the Canadian publishing industry to create born-accessible materials for people with print disabilities; to invest significantly to ensure an AI and data commissioner is sufficiently resourced to monitor developments, oversee activities, and respond to issues expediently; and to increase the Digital Research Alliance of Canada funding allocation for 2025–2030 to enhance high-performance computing infrastructure, harness research-software innovation, implement a national strategy on persistent identifiers (PIDs), deliver networked pan-Canadian data-stewardship services, and expand training capacity in the Canadian digital research infrastructure (DRI) ecosystem.

Copyright and Fair Use/Fair Dealing

ARL to Congress: Federal Right of Publicity Might Address AI Concerns While Protecting Free Expression

During the July 12 Senate Judiciary Intellectual Property Subcommittee hearing on copyright and artificial intelligence (AI), several senators and witnesses suggested that a federal right of publicity law might be a way to address concerns that arise when an individual’s likeness is copied by AI models and used to produce deepfakes. Following the hearing, ARL produced a three-page explainer to influence Congress’s ongoing conversations about a federal publicity right. While a federal right of publicity may address gaps in state publicity laws, Congress should take care to clarify that a publicity right is not an intellectual property right. ARL will continue to engage with members of Congress on issues related to generative AI.

CARL Responds to Recent Media Coverage on Educational Copying

CARL issued a communiqué in early August to respond to recent media coverage on educational copying, which has been misrepresenting the Canadian education sector and universities in particular. The focus of this misinformation is on fair dealing and the use of course materials in classrooms. In its statement, CARL describes that universities pay license fees for the majority of course materials, and rely on educational fair dealing guidelines for materials that are subject to fair dealing.

Change to Key Minister for Canada’s Copyright Act

The prime minister of Canada’s recent cabinet shuffle resulted in the former minister of Canadian Heritage, a key player in the copyright portfolio, being moved out of that role. It appears that the new minister, Pascale St-Onge, will continue the legislative agenda of the previous minister, including the push to “fix” the educational publishing market by eliminating fair dealing for the purpose of education. Access Copyright has been very active in its lobbying for this undesirable change.

Library Copyright Alliance Submits AI & Copyright Principles to US Office of Science and Technology Policy

In response to a White House request for information on national priorities for artificial intelligence, the Library Copyright Alliance (LCA) submitted principles on copyright and AI to influence ongoing policy discussions in this area. The principles state that the US Copyright Act—in particular, the authorship requirement, substantial similarity doctrine, and fair use—is robust and flexible enough to address issues that arise at the intersection of copyright and AI. The request for information listed 29 questions on the following topics: protecting rights, safety, and national security; advancing equity and strengthening civil rights; bolstering democracy and civic participation; promoting economic growth and good jobs; and innovating in public services. ARL’s Scholarship and Policy team will continue to engage with OSTP on AI and other priorities.

LCA Petitions US Copyright Office for Continued Access to Copyrighted Works

The US Copyright Office initiated in June the ninth triennial rulemaking proceeding under the Digital Millennium Copyright Act (DMCA). Section 1201 of the DMCA prohibits users from circumventing technological protection measures—digital locks—that prevent access to copyrighted works, even for noninfringing purposes. During the rulemaking, the Library Copyright Alliance (LCA) and other interested parties petition the librarian of Congress to adopt exemptions that permit users to circumvent these technological protection measures. Exemptions granted by the librarian are effective for three years. LCA supported renewal of the following existing exemptions:

Motion Pictures

• For the preservation or the creation of a replacement copy of the motion picture by libraries, archives, or museums
• Excerpts for educational purposes by college and university faculty, students, or employees acting at the direction of faculty, or K–12 educators and students
• Excerpts for educational purposes in digital and literacy programs offered by libraries, museums, and other nonprofits
• For text and data mining by a researcher affiliated with a nonprofit institution of higher education, or by student or staff at the direction of such researcher, for the purpose of scholarly research and teaching
• For the provision of captioning and/or audio description by disability services offices or similar units at educational institutions for students, faculty, or staff with disabilities

Literary Works

• Literary works distributed electronically for text and data mining by a researcher affiliated with a nonprofit institution of higher education, or by student or staff at the direction of such researcher, for the purpose of scholarly research and teaching
• Literary works or previously published musical works that have been fixed in the form of text or notation whose technological protection measures interfere with assistive technologies

Computer Programs and Video Games

• Computer programs other than video games, for the preservation of computer programs and computer program-dependent materials by libraries, archives, and museums
• Video games for which outside server support has been discontinued, to allow individual play by gamers and preservation of games by libraries, archives, and museums (as well as necessary jailbreaking of console computer code for preservation uses only), and discontinued video games that never required server support, for preservation by libraries, archives, and museums

In a Win for Access to Knowledge, Circuit Court Affirms Server Test

The US Court of Appeals for the Ninth Circuit affirmed the “server test,” which provides that a website cannot be liable for copyright infringement when it embeds content that is hosted on another website’s server. The Ninth Circuit first established the server test in its 2007 Perfect 10 v. Amazon decision, based on its interpretation that the US Copyright Act requires content to be “fixed in the computer’s memory”—in other words, stored on a server—in order to be infringing. Under Perfect 10, merely embedding or linking to an image from a host server does not “display a copy” of the underlying image, because the image is never stored on the embedding website.

The recent case, Hunley v. Instagram, was a class-action suit brought by photographers who alleged that Instagram’s embedding tool violated copyright law by allowing online news sites to display the photographers’ copyrighted photos.

LCA joined an amicus brief in support of Instagram, asking the court to affirm the server test. The brief enumerated the ways that libraries and educators use links and embedding to inform and empower scholars, students, and other users. Subjecting libraries and other users to strict liability for embedding links would create a chilling effect and stifle freedom of expression online. The brief was authored by the Electronic Frontier Foundation (EFF), and signed by the Computer and Communications Industry Association (CCIA), American Library Association (ALA), Association of Research Libraries (ARL), Association of College & Research Libraries (ACRL), Authors Alliance, and The Organization for Transformative Works.

For more on the Ninth Circuit’s favorable decision, please see “Ninth Circuit Affirms the Server Test in Hunley v. Instagram” by Jonathan Band.

LCA Supports South Africa Copyright Amendment Bill in Comments to US Trade Representative

Following a hearing on the eligibility of sub-Saharan African countries to receive the benefits of the African Growth and Opportunity Act (AGOA), the Library Copyright Alliance (LCA) responded to a request for post-hearing comments by the Office of the US Trade Representative. The hearing and comments will inform the US trade representative’s review of the eligibility of countries to benefit from AGOA, which provides duty-free treatments to goods of designated sub-Saharan African countries. A key factor in assessing eligibility is the extent to which the country is providing adequate and effective protection and enforcement of intellectual property rights.

In the comments, LCA supported aspects of South Africa’s Copyright Amendment Bill (CAB) and the Performers’ Protection Amendment Bill (PPAB), and refuted points made by the International Intellectual Property Alliance (IIPA) about the inadequacy of the bills. A central theme of the LCA comments is that many of the policy choices made in the CAB and the PPAB are consistent with US law, such as fair use. LCA also points out that provisions that would preserve the right of researchers to make their research available to the public do not undermine academic freedom, as IIPA asserts. And, LCA holds that the right to make accessible-format copies should apply broadly, and not just to authorized entities.

The bills significantly increase the overall level of copyright protection, and their enactment does not provide a plausible basis for South Africa to lose its eligibility for trade preferences due to not providing adequate and effective protection for intellectual property. For more, see Libraries Scold Rightsholders’ Attempt to Tweak South Africa’s Copyright Bill.

Judge Orders Permanent Injunction in Hachette v. Internet Archive

On August 11, Judge Koeltl of the Southern District of New York issued an injunction prohibiting Internet Archive and related parties from distributing, displaying, performing, reproducing, or creating derivative works of books that are “commercially available for sale or license in any electronic text format.” Internet Archive is further prohibited from inducing or contributing to another party’s infringing activities, and from profiting from such an infringement.

Following the March 24 ruling in favor of the publishers, Judge Koetl asked both parties to propose “an appropriate procedure to determine the judgment to be interested in this case.” While both parties agreed on injunctive relief, the publishers took the position that the injunction should apply to their books that are commercially available in any format. Conversely, lawyers for the Internet Archive argued that, because an injunction should be narrowly tailored to the issues addressed in the case, and the case involved only books available for electronic licensing, injunctive relief here should likewise be limited to books available for electronic licensing. The court agreed with Internet Archive, and limited the scope of the injunction to works for which publishers have made e-books available. The order explicitly preserves for Internet Archive parties the user rights in Section 108 and Sections 110–122 of the US Copyright Act.

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