ARL Public Policy Briefing
January 2024
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Katherine Klosek, Director, Information Policy and Federal Relations
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This month’s
Public Policy Briefing includes opportunities to participate in Fair Use/Fair Dealing Week. The Library Copyright Alliance (LCA) joined other public interest groups in petitioning the US Copyright Office for expanded regulations related to preservation and research. ARL led a sign-on letter asking Congress to safeguard access to standards and codes that are referenced in law. ARL joined advocacy by the American Council on Education (ACE) that influenced the US Department of State to improve flexibility for student visa applicants. ARL joined an amicus brief by the American Civil Liberties Union (ACLU), asking the Pennsylvania Supreme Court to recognize that search-history data is protected by the state and federal constitutions. ARL continues to advocate to limit Congress’s proposals to create a federal right of publicity. And, ARL joined the Coalition for National Science Funding (CNSF) in asking Congress to fund NSF at the highest level possible in FY 2024.
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
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Online Speech and Privacy
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Copyright and Fair Use/Fair Dealing
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Fair Use/Fair Dealing Week 2024 Is February 26–March 1
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Fair use (in the US) and fair dealing (in Canada) are essential to copyright law, allowing the use of copyrighted materials without permission from the copyright holder under certain circumstances. Fair use and fair dealing allow users to apply copyright law to new technologies and applications; for instance, in the US, courts have found that mass digitization of copyrighted works for non-consumptive purposes is a fair use. Fair use and fair dealing facilitate balance in copyright law, promoting further progress and accommodating academic freedom and freedom of expression.
While fair use and fair dealing are employed on a daily basis by researchers, students, faculty, librarians, journalists, and all users of copyrighted material, Fair Use/Fair Dealing Week is a time to promote these concepts, and celebrate fair use and fair dealing. See below for ideas of how you and your institution can celebrate fair use and fair dealing.
Share what you’re doing on FairUseWeek.org! Are you hosting a local event, like a live panel, or virtual webinar to
show off how your community can access and build on your library’s special collections, or demonstrate your institution’s focus on music, film, dance, etc.? Are you sharing your unique perspective on recent fair use jurisprudence in a blog post?
Send it to us for inclusion on fairuseweek.org and on social media using this online form.
To learn more about fair dealing in Canada or to share your events for Fair Dealing Week visit Fair Dealing Works.
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LCA Joins Petitions to US Copyright Office to Expand Regulations on Preservation, Text-and-Data Mining
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As the Digital Millennium Copyright Act (DMCA) ninth triennial rulemaking continues, the Library Copyright Alliance (LCA) joined Authors Alliance and the American Association of University Professors (AAUP) in asking the US Copyright Office to expand the regulation allowing text-and-data mining. Presently, the regulation allows researchers affiliated with one nonprofit institution of higher education to share corpora with researchers affiliated with different institutions of higher education “solely for the purposes of collaboration or replication of the research.”
The petition by Authors Alliance, AAUP, and LCA proposes amending the current exemption to allow researchers to share corpora with researchers affiliated with different nonprofit institutions of higher education for purposes of conducting
independent text-and-data mining research and teaching. All researchers would need to comply with the requirements of the exemption: they must be affiliated with an institution of higher education as defined in the exemption, that institution must own lawfully acquired copies of the underlying works, and the institution must comply with security standards as defined in the regulation. The petition includes testimony from humanities researchers describing how granting the proposed expansion will enable valuable digital humanities research and teaching via text-and-data mining.
LCA also joined the Software Preservation Network (SPN) in a petition to expand the video game preservation exemption to allow for remote access to preserved video games by authorized users. The video game petition explains that vintage video games like
Duck Hunt—an important piece of video game history—are only available to scholars who can travel to access them in person due to the constraints imposed by Section 1201 of the DMCA. If the exemption were expanded as proposed, scholars who teach and study video games would have legal options to access vintage video games remotely.
LCA joined another petition by SPN making the case to allow remote access to software for multiple simultaneous users. This expansion is necessary for scholars who need access to software and software-dependent digital materials that libraries and archives have preserved, and who do not have the time or budget to travel to a library or archives to access software on the premises. The scholarly and historical record will benefit from increased availability of digital objects, for criticism, scholarship, and learning.
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ARL, Higher Education Associations Influence US Policy on Student Visas
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On December 8, 2023, ARL joined a letter by the American Council on Education (ACE) asking the US secretary of state to extend or make permanent flexibilities that allow waiving the in-person interview requirement for certain nonimmigrants, including some student visa applicants. The waiver has allowed faster processing for international students and scholars applying for F-1 and J-1 visas to study and complete research in the US. In fiscal year 2023, this flexibility allowed the State Department to issue the largest number of visas since 2016.
On December 21, the secretary of state announced that interview waivers for nonimmigrant applicants who have previously held the same visa and have not had a previous rejection are in the national interest. The updated guidance went into effect on January 1, 2024.
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Online Speech and Privacy
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ARL, ACLU Ask Pennsylvania Supreme Court to Protect Right to Privacy in Internet Searches
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ARL joined an American Civil Liberties Union (ACLU) amicus brief in
Pennsylvania v, Kurtz, asking the Pennsylvania Supreme Court to hold that search-history data is protected by the state and federal constitutions—a reversal of the lower court’s conclusion that people do not have a reasonable expectation of privacy in any query they enter into a search engine. The brief is in response to a request by the Pennsylvania Supreme Court on whether there is an expectation of privacy in the terms entered into a search engine like Google’s, such that the Fourth Amendment and the Pennsylvania constitutional right to privacy apply.
The case involves a police investigation in which the police obtained a warrant and asked Google for the identities of everyone who had searched for a victim’s address, which led them to the defendant. The ACLU calls this a “reverse search” warrant; rather than investigating a suspect, the police developed a suspect by probing a vast database of search histories. The defendant challenged the search and the appellate court held that there is no expectation of privacy in search queries, so no warrant is required at all.
Privacy has been a core value of librarianship for almost 100 years. Long before the internet, libraries protected patrons’ traditional book-borrowing records. Today, libraries recognize that protecting privacy is important to promoting intellectual freedom, because people cannot read, write, or research freely if they fear surveillance. Recognizing that library records can reveal intimate information about patrons, nearly every state, including Pennsylvania, has a statute protecting the confidentiality of library patron records. Internet search records are even more extensive, revealing, and voluminous than library patron records. The brief asks the court to recognize that the Fourth Amendment must protect search-query information in order to protect the First Amendment interest in access to information.
Other signatories to the brief include ACLU of Pennsylvania, Library Freedom Project, Freedom to Read Foundation, and Internet Archive.
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ARL Advocates to Limit Congress’s Proposals to Create Federal Right of Publicity
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Representatives Madeleine Dean (D-PA) and María Salazar (R-FL) introduced the No AI FRAUD Act, another proposal that—like the No FAKES Act in the Senate—purports to stop fraudulent use of generative AI to misappropriate a person’s image or voice. Preventing deceptive uses of a person’s digital likeness is a laudable goal, and mis- and disinformation are real problems. But proposals to create a new federal property right raise concerns about constitutionality. Congress does not have the authority to create a federal property right to protect an individual’s image and likeness, as they do not include any originality—a requirement under the US Constitution’s IP clause.
Further, the bills raise implications for intermediary liability that could stifle speech online. Characterizing a new federal right of publicity as an intellectual property right means that the right would fall into the federal IP carve out of Section 230(e)(2), effectively empowering lawsuits against any interactive computer service that hosts or transmits AI-generated content. In 2021, ARL joined an amicus brief by the Electronic Frontier Foundation (EFF) in the case of
Hepp v. Facebook, arguing that construing Section 230 to permit publicity-right claims would restrict speech and lead to censorship. For more on the No AI FRAUD Act, see this January 19 post by EFF.
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ARL, Coalition for National Science Funding Ask Congress to Fund National Science Foundation at Highest Level Possible in FY 2024
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ARL joined a letter by the Coalition for National Science Funding (CNSF) calling for the highest possible amount for the US National Science Foundation (NSF) in final appropriations for FY 2024. The current level of funding—$9.5 billion—falls far below the nation’s competitiveness needs, and flat funding would: impede NSF’s ability to fully stand up the Directorate for Technology, Innovation, and Partnerships (TIP); threaten the success of the Regional Innovation Engines program to transform regional economies; and slow investments in critical emerging technologies such as Artificial Intelligence (AI) Institutes. The letter argues that cuts to NSF would be devastating to the US innovation ecosystem and national security.
In the letter, the coalition expresses concern with the deep cuts to the Directorate for STEM Education proposed by the House of Representatives; the directorate funds graduate fellowships and research to improve STEM education at all levels. CNSF also makes the case for Congress to provide NSF with full funding at the CHIPS and Science authorization level in any supplemental funding package.
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