ARL Public Policy Briefing
November–December 2023
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Katherine Klosek, Director, Information Policy and Federal Relations
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Happy holidays!
During November’s World Intellectual Property Organization (WIPO) meeting, ARL and the Canadian Association of Research Libraries (CARL) sponsored a discussion on Marrakesh Treaty implementation. In the US, ARL worked with higher education associations to inform the US federal government’s rules on federally funded research. The Library Copyright Alliance (LCA) and Authors Alliance responded to US Federal Trade Commission (FTC) comments on copyright and AI. LCA joined a brief in a US Supreme Court case concerning the statute of limitations in the US Copyright Act. Libraries and other accessibility, archival, and security fair users asked the DC Circuit Court to recognize that Section 1201 of the Digital Millennium Copyright Act (DMCA) is unconstitutional. As a member of the Coalition on National Science Funding (CNSF), ARL asked federal appropriators to fund the research commitments Congress made in passing the CHIPS and Science Act. ARL, the American Council on Education (ACE), and EDUCAUSE continued to advocate for the US Federal Communications Commission’s (FCC) proposed net neutrality rules. ARL joined higher education coalitions to push back on burdensome and duplicative reporting requirements for foreign gifts and contracts. And, ARL and civil society groups successfully lobbied against a bill that would create liability for libraries that use or provide AI tools.
In Canada, CARL responded to the Canadian Government consultation on copyright and AI. And CARL discussed the Canadian Government’s plans for the Copyright Act with government representatives.
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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Copyright and Fair Use/Fair Dealing
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ARL, Canadian Association of Research Libraries (CARL) Host Discussion of Marrakesh Treaty at World Intellectual Property Organization (WIPO) Meeting
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CARL and ARL hosted a side event at the WIPO Standing Committee on Copyright and Related Rights (SCCR) meeting in November. The session presented the work of the Marrakesh Treaty Task Force and its subcommittees on what it takes to be able to implement the cross-border exchange of accessible format books. The well-attended session raised questions with representatives of Canada’s government regarding provisions that Canada adopted in its legislation at the time of ratification, including the requirement to check whether a work is available commercially in the required accessible format. CARL will continue to discuss these provisions as part of its ongoing copyright work. The final report of the Marrakesh project will be made public by early January. Watch a recording of the event.
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ARL Asks US Federal Government to Clarify Proposed Guidance for Federal Grants
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The US Office of Management and Budget (OMB) is proposing revisions to its Guidance for Grants and Agreements. The guidance addresses a number of issues that are relevant for recipients of federal research funding, such as copyright and licensing for federal grantees, and the indirect cost rate for institutions of higher education.
ARL asked OMB to clarify that its proposed language on grantees asserting copyright is intended to more accurately reflect that copyright automatically comes into being upon fixation, and that authors and researchers do not need to place notice on a work or seek approval to receive copyright protection. We also asked OMB to clarify that the proposed new definition of encumbrance in section 200.315(a) of the guidance does not imply that federal approval would be required for copyright owners to license their works.
In a follow-up from previous comments by ARL and COGR, we suggested that OMB adjust its treatment of libraries in its indirect cost criteria to more accurately reflect fair reimbursement for the investments that 21st-century libraries make in supporting federally funded research.
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CARL Responds to Canadian Government Consultation on Copyright and AI
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CARL submitted its comments to the Government of Canada in response to the Consultation on Copyright in the Age of Generative Artificial Intelligence launched in October 2023. CARL recommends that: the government not restrict the use of AI (unintentionally or otherwise) until a user community of practice is established and perhaps court decisions (likely drawn on the principle of technological neutrality); AI-generated works do not meet the threshold for copyright protection as they do not involve a human exercise of skill and judgment and should not be protected by copyright; a new statutory provision be implemented to confirm that the use of a work or other subject matter for the purposes of text-and-data mining (TDM) does not infringe copyright; there are means in place already that manage infringement and liability and so the Copyright Act should not be changed in this regard; and, any new copyright regulation of AI should not negatively impact the public’s right and ability to access information, knowledge, and culture.
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CARL Discusses Canadian Government’s Plans for Copyright Act with Government Representatives
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On December 1, CARL met with members from the Department of Canadian Heritage and the Department of Innovation, Science, and Economic Development Canada to discuss the current status of the government’s plans for the Copyright Act and to discuss other means of addressing the Canadian literary marketplace situation outside of the act.
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Library Copyright Alliance (LCA), Authors Alliance Respond to US Federal Trade Commission (FTC) Comments on Copyright and AI
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In comments responding to the US Copyright Office Artificial Intelligence study, the Federal Trade Commission (FTC) asserted that the commission would have the authority to initiate an enforcement action for an unfair practice or unfair method of competition on the basis of copyright infringement. The FTC also suggested that generative AI will harm creators whose works are used to train AI models, and that scraping and training should trigger liability. These comments are informed by the FTC’s “Creative Economy and Generative AI” Roundtable, which unfortunately did not include participation from a broad cross-section of stakeholders, or any discussion of how creators and others benefit from AI tools.
LCA joined Authors Alliance in reply comments stating that FTC enforcement of copyright law would alter the regime that Congress established for private enforcement of copyright, and undermine the role of the courts in resolving copyright questions. The reply comments recommend that the Copyright Office consider coordinating the potentially overlapping interests of public agencies to prevent regulatory action that would stifle creativity and expression in copyright-dependent sectors.
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LCA Joins Amicus Brief to Protect First Amendment Rights of Accessibility, Archival, and Security Fair Users
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In the case Matthew Green v. US Department of Justice (DOJ), LCA joined a brief describing how Section 1201 of the Digital Millennium Copyright Act (DMCA) violates the First Amendment.
Section 1201(a)(1) prohibits circumventing technological protection measures (TPMs) to access a work protected by copyright, even for a non-infringing purpose. The brief argues that 1201 burdens the First Amendment rights of users to make fair uses of copyrighted works, and eliminates the capacity of fair use to serve as a First Amendment safeguard when copyrighted works are locked by TPMs. Further, Section 1201’s triennial rulemaking procedure fails to alleviate the statute’s constitutional flaws. During Section 1201 rulemakings, the Copyright Office has concluded that accessibility uses, preservation activities that exceed the scope of Section 108, and security-focused exemptions entail fair use. Rather than rely on the protection of fair use, advocates must seek permission from the Copyright Office to engage in these constitutionally protected activities on a triennial basis.
The Electronic Frontier Foundation (EFF) represents security researcher Matthew Green and technologist Andrew “bunnie” Huang, who challenged the constitutionality of Section 1201(a) of the DMCA in a 2016 lawsuit against the US government. LCA joined a brief in the previous round of litigation in this case, in which the court denied the researchers’ request for a preliminary injunction. The court then ruled against the researchers on the heart of their claim, and they are appealing the decision to the US Court of Appeals for the DC Circuit. This time, the court will consider whether the law creates an unconstitutional speech-licensing regime.
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LCA Defends US Copyright Act Statute of Limitations in Supreme Court Case Warner Chappell Music v. Nealy
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The Library Copyright Alliance joined an amicus brief in Warner Chappell Music v. Nealy, where the US Supreme Court will consider whether damages can be awarded for injury that occurred more than three years prior to the filing of the lawsuit. The case concerns Sherman Nealy, who filed a lawsuit in 2018 alleging copyright infringement against Warner Chappell Music for activities dating back to 2008. Nealy successfully argued in the US Court of Appeals that the three-year statute of limitations started when he discovered or reasonably should have discovered the infringement, and that he can recover any damages that accrued before the filing of the lawsuit. Warner Chappell Music countered that plaintiffs are limited to damages that occurred three years prior to the filing of the lawsuit. The US Court of Appeals for the Eleventh Circuit ruled in favor of Nealy.
Lower courts have interpreted the interaction of the statute of limitations and the award of damages inconsistently. Although a lawsuit must be brought within three years of the lawsuit “accruing,” there is disagreement on whether damages should be available for more than three years prior to the timely filing of the lawsuit. The Supreme Court’s decision in this case might clarify how the statute of limitations should apply to damages in copyright cases.
The statute of limitations in the US Copyright Act is an important safeguard that limits risks to libraries when they use copyrighted works. The precise scope of the exceptions libraries rely upon to make preservation and accessible-format copies, to share works with other libraries, and to conduct other fundamental activities can be unclear. The Library Copyright Alliance joined the Electronic Frontier Foundation in an amicus brief in support of Warner Chappell, asking the Supreme Court to hold that the statute of limitations in the US Copyright Act limits plaintiffs from recovering damages in a copyright infringement suit to the three years before filing suit. Open-ended liability—in which a plaintiff could recover damages for copying that occurred a decade or more before filing suit—could create a chilling effect on libraries’ use of these exceptions in furtherance of their mission.
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ARL, Higher Education Associations Advocate for Net Neutrality Regulations
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Since 2014, libraries and higher education associations have been aligned in our advocacy to ensure an open internet for research, learning, and information sharing. In September, the US Federal Communications Commission (FCC) proposed net neutrality regulations that would prohibit public broadband internet providers from infringing on the openness of the internet by blocking or throttling internet traffic, or requiring payment by certain customers to have their data traffic prioritized.
In response, ARL and EDUCAUSE submitted a letter in support of the FCC’s proposed net neutrality regulations, describing how libraries and institutions of higher education rely on public broadband internet access to provide essential services to communities. Particularly during the COVID-19 pandemic, library internet access was the only way for some communities to complete homework assignments, reference government documents, consult federally funded research, and more. Clear rules are needed to prohibit public broadband internet access providers from making libraries pay more when they provide access to resource-intensive audiovisual collections, or large datasets that are curated and stored by research libraries. Barring providers from blocking or throttling research and speech that they disagree or find to be controversial with will protect the principle of academic freedom that stands at the heart of all aspects of the higher education mission. Further, the FCC’s Notice of Proposed Rulemaking accurately reflected the unique role of libraries and universities as private end-user networks. Even when libraries and universities provide internet access, they do not function as mass-market retail services, and should not be subject to the requirements for public broadband internet access providers. As the FCC has historically found, end users should be free to decide how they use the broadband services they obtain from network operators and commercial ISPs.
ARL also joined a letter by the American Council on Education (ACE) offering strong support for a free and open internet, and for the FCC’s proposed network neutrality requirements. Both letters cite the library and higher education net neutrality principles.
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ARL, Civil Society Push Back on “No Section 230 Immunity for AI Act”
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Section 230 of the Communications Decency Act is a 1996 law that protects libraries and other interactive computer services from liability for third-party speech. The recently introduced No Section 230 Immunity for AI Act (S. 1993) would eliminate this liability protection for conduct involving the use or provision of generative AI.
ARL joined a letter to Senate leadership explaining how the overly broad definition of artificial intelligence in the bill introduces uncertainty as to whether basic functions like predictive text or content-moderation tools would be subject to costly and time-consuming lawsuits. S. 1993 would enable censorship by allowing state attorneys general to bring lawsuits against third-party content they don’t like. For instance, had this bill become law, state laws criminalizing providing information on abortion would be enforceable if the content in question was posted by anyone on any service that provides generative AI tools to its users.
The bill was defeated on the Senate floor this month.
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ARL, Coalition for National Science Funding (CNSF) Ask US Congress to Prioritize Funding for National Science Foundation (NSF)
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ARL joined the CNSF in asking the Biden-Harris administration to work with Congress to increase funding for NSF. Congress authorized $16.7 billion for NSF in FY 2025, but the current level of NSF funding and the proposed NSF funding in the House and Senate draft FY 2024 appropriations bills are below this level. The letter asks the Biden-Harris administration to renew its commitment to the funding goals of the CHIPS and Science Act as it prepares its FY 2025 budget.
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ARL, Higher Education Associations Oppose Burdensome and Duplicative Reporting Requirements
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This month, the US House of Representatives passed a bill that would lower thresholds for foreign-gift reporting requirements under Section 117 of the Higher Education Act (HEA). Presently, colleges are required to report foreign gifts and contracts valued at more than $250,000. The Defending Education Transparency and Ending Rogue Regimes Engaging in Nefarious Transactions (DETERRENT) Act would lower the reporting threshold to $50,000; funds from “countries and entities of concern" would be subject to a threshold of zero dollars. Universities receiving more than $50 million annually in federal research and development funds would be required to create and maintain a searchable public database with information on foreign gifts and contracts to individual research faculty and staff.
As a member of the American Council on Education (ACE), ARL joined higher education associations in pushing back on proposed legislative changes to the reporting requirements in Section 117 of the Higher Education Act (HEA). ACE explained how the higher education community has worked to educate institutions on HEA reporting requirements regarding foreign gifts and contracts, and collaborated with the federal government to clarify and improve foreign gift and contract reporting. New provisions in the DETERRENT Act are overly broad and are duplicative of existing requirements, including those in the recently passed CHIPS and Science Act, National Defense Authorization Act (NDAA), and guidance for implementing National Security Presidential Memorandum 33 (NSPM-33). Above all, it is far from clear how the DETERRENT Act would address issues of national security beyond existing federal requirements.
It is uncertain when the Senate will take up the bill, or if it will have bipartisan support.
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