ARL Public Policy Briefing
September/October 2023
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Katherine Klosek, Director of Information Policy
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ARL submitted comments in response to the US Department of Justice proposed regulatory changes to Title II of the Americans with Disabilities Act (ADA). Members of ARL’s policy team were honored to join the Library of Congress in celebrating 10 years of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. ARL joined libraries, civil society organizations, and legal experts and scholars in expressing concern to Congress about calls for new copyright restrictions in response to the recent emergence of generative AI. The Library Copyright Alliance (LCA) submitted comments in support of the US Copyright Office proposal to expand electronic deposit. Congress held a roundtable of the Copyright Public Modernization Committee, and an oversight hearing of the US Copyright Office. In an unfortunate decision, the DC Circuit Court held the US Copyright Act mandatory deposit requirement to be unconstitutional. And, the DC Circuit Court decided that the dissemination of technical standards as incorporated into law constitutes fair use.
In case you missed it, please see “Protecting Library Rights: Considerations for Congress” in the latest edition of College & Research Libraries News, published by the Association of College & Research Libraries (ACRL). The article suggests approaches that the US Congress may take to protect the special rights that Congress granted to libraries through the limitations and exceptions in the US Copyright Act.
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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ARL Responds to Proposed Regulations on Americans with Disabilities Act
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Library of Congress Commemorates 10 Years of Marrakesh Treaty
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During an event celebrating 10 years since the World Intellectual Property Organization (WIPO)–administered Marrakesh Treaty was adopted, the National Library Service for the Blind and Print Disabled (NLS) celebrated the ways that the treaty has supported NLS in fulfilling its motto, “that all may read.” Jason Broughton, director of NLS; Shira Perlmutter, register of copyrights; and Nancy Weiss, general counsel of the Institute of Museum and Library Services (IMLS) and a member of the 2013 US delegation to the diplomatic conference where the treaty was adopted, discussed why the treaty matters to readers and libraries, the experience of those who were in Marrakesh as the treaty was negotiated and signed, the process by which nations that ratify or accede to the treaty enact implementing legislation, how NLS continues to implement and execute the treaty, and why the treaty matters to readers and libraries. The panel opened with a tribute to disability rights activists Scott LaBarre and Judy Heumann.
Under the treaty, NLS has added almost 5,000 digital audio and braille titles in 26 languages from countries that have acceded to or ratified the treaty. According to NLS, Marrakesh allowed NLS to share more than 197,000 titles with the Accessible Books Consortium (ABC); these works have been downloaded more than 12,000 times by libraries in nearly 50 countries. Director Broughton read letters of thanks from Marrakesh Treaty beneficiaries, who shared stories of how the books they were able to access through NLS improved their lives.
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Copyright and Fair Use/Fair Dealing
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ARL, Coalition Partners to Congress: Do Not Restrict the Promise of Generative AI
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ARL joined libraries, civil society organizations, and legal experts and scholars in a letter expressing concern to Congress about calls for new copyright restrictions in response to the recent emergence of generative artificial intelligence (AI).
Generative AI has the potential to fulfill the constitutional promise of copyright law, by accelerating the progress of science and useful arts. At the same time, some members of Congress have discussed amendments to the US Copyright Act that would require permission from rightsholders to access materials to train AI models. A regime of excessive permission would expand the scope of the traditional copyright monopoly; undermine competition in the AI marketplace by imposing financial and logistical burdens that new companies or applications may not be able to bear; and restrict the potential for creators to use AI to develop new works of fiction, video games, software, and more.
As it stands today, US copyright law is broad and flexible enough to accommodate new technology, and to address legitimate concerns of creators. Whether or not an application of generative AI is fair use should be decided by courts, which is the proper forum to apply copyright doctrines to the specific fact patterns that will emerge from the use of AI in the years to come.
Many of the issues that generative AI raises fall outside of the scope of copyright law. For instance, the very real problem of using AI to create deepfakes or political misinformation may be addressed through existing right-of-publicity and trademark law.
The letter was drafted by Sy Damle, copyright attorney and former general counsel and associate register of copyrights at the US Copyright Office, who testified during a May House of Representatives Judiciary Subcommittee hearing titled “Artificial Intelligence and Intellectual Property.” Damle testified that fair use, as applied by the courts, is the best way to balance competing interests in the fair use space. In his testimony, Damle cited Authors Guild, Inc. v. HathiTrust as a case that establishes the intermediate use of a copyrighted work to create a noninfringing final product as quintessential fair use.
The American Library Association (ALA), Authors Alliance, Chamber of Progress, Creative Commons, Electronic Frontier Foundation, Internet Archive, Public Knowledge, R Street Institute, TechFreedom, and Tech:NYC joined the letter, along with individual signers.
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US Register of Copyrights Addresses Questions on AI, Right to Repair during Copyright Office Oversight Hearing
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In an oversight hearing before the US House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet, Shira Perlmutter, register of copyrights and director of the US Copyright Office, referenced the Copyright Office’s notice of inquiry on copyright and generative AI as a source to address outstanding issues around generative AI. Lawmakers asked a range of questions on topics like the economic effects of generative AI on human creators when their works are used as inputs for machine learning; how different licensing regimes like a compulsory license system, direct licensing, or collective licensing could address issues of authorization, compensation, and credit when copyrighted works are used in training AI; the feasibility and practicality of any such licensing system; and the extent to which legislative solutions might be necessary.
In addition to questions about AI, representatives asked about codifying a right to repair to allow consumers to fix their own equipment. Perlmutter said that the Copyright Office has addressed the right to repair personal equipment like cellphones, medical devices, and vehicles through the triennial rulemaking for exemptions to Section 1201 of the Digital Millennium Copyright Act (DMCA), and that the office has recommended a statutory permanent exemption for right to repair. In response to questions from Congressman Fry (R-SC) and Congresswoman Lofgren (D-CA) about the best way to address name, image, and likeness issues, Perlmutter referenced the Copyright Office’s study, Authors, Attribution, and Integrity: Examining Moral Rights in the United States, which recommended that Congress adopt a federal right-of-publicity policy law to harmonize such laws at the state level.
For more on ARL’s position on a federal right of publicity, see this explainer.
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DC Circuit Court Holds Copyright Act Deposit Requirement Unconstitutional
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In Valancourt Books v. Merrick Garland, the US Court of Appeals for the DC Circuit concluded in August 2023 that the mandatory deposit of physical copies of works under Section 407 of the US Copyright Act is an unconstitutional government taking of Valancourt’s property. Section 407 requires copyright holders to deposit two copies of a work with the Library of Congress within three months of its publication. To enforce this requirement, the US Copyright Office sent letters to Valancourt Books, demanding physical copies of Valancourt’s published books. Valancourt ultimately sued Register of Copyrights Shira Perlmutter, and Attorney General Merrick Garland, claiming that the application of Section 407’s deposit requirement is an unconstitutional taking of its property in violation of the Fifth Amendment, and an invalid burden on its speech in violation of the First Amendment.
The appellate court reversed the 2021 district court decision, which held that the Copyright Office’s deposit demands were constitutional as part of a voluntary exchange for federal copyright protection. In its reversal, the DC Circuit said, because copyright is granted automatically upon fixation of a work, Valancourt received no benefit in exchange for the government’s taking of its property. As the court did not assess the constitutionality of demanding electronic copies, the holding relates solely to the office’s demand for physical copies of copyrighted works.
In a brief in support of the mandatory deposit requirement, the Library Copyright Alliance (LCA) noted that the Section 407 deposit requirement has served to preserve works in a national collection housed at the Library of Congress, which is available to the public both during and after the term of copyright protection. Mandatory deposit is a critical preservation provision in the US Copyright Act, particularly as rightsholders increasingly use technology and copyright law to extend their control over digital works and cultural heritage materials. The deposit requirement is instrumental to ensuring that the Library of Congress collects and preserves works that commercial publishers choose to register and market. Because of the deposit requirement, the library’s collection represents a diversity of creators and ideas, and rare and neglected works that could be lost from the national memory. LCA is grateful to Erik Stallman and the students of the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley School of Law for their work on the amicus brief.
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Library Copyright Alliance Supports US Copyright Office Proposal to Expand Electronic Deposit
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Under 37 Code of Federal Regulations § 202.18, the Library of Congress may provide limited on-site access to groups of newspapers electronically submitted for registration, as well as electronic serials and books submitted for mandatory deposit. The Copyright Office has proposed expanding the categories of electronic deposits covered by the regulation with the same limitations on access as are currently in place.
The Library Copyright Alliance (LCA) supports adoption of the rule proposed by the Copyright Office. Unless the existing on-site access rules are expanded to new categories of deposits, over time the public would have increasingly less access to works in the library’s collections.
LCA notes that while the US Court of Appeals for the DC Circuit recently found in Valancourt v. Garland that the mandatory deposit of physical copies under Section 407 of the US Copyright Act is an unconstitutional taking, this decision does not implicate the proposed rule because the court expressly declined to consider the constitutionality of mandatory deposit of electronic copies.
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University of Michigan Library Represented at Congressional Copyright Roundtable
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This month, the US House Administration Committee held a roundtable with members of the Copyright Public Modernization Committee, including Melissa Levine, director of the Copyright Office at University of Michigan Library. During the roundtable, panelists discussed whether the current deposit system is robust enough, and whether the physical copy concept is becoming dated. In response to a question about the implications of Valancourt Books v. Merrick Garland, Levine said collecting works digitally is a preservation issue for the future, pointing out that paper and digital books have different preservation concerns.
Other roundtable participants included representatives from the National Information Standards Organization (NISO), the Recording Industry Association of American (RIAA), Internet Archive, Copyright Clearance Center, Copyright Alliance, Association of American Literary Agents, PLUS Coalition, and Art Center College of Design.
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DC Circuit Court Unanimously Upholds Right to Republish Public Laws
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In a welcome and unanimous decision in the case American Society for Testing Materials v. PublicResource.Org, the US Court of Appeals for the DC Circuit found that the dissemination of technical standards as incorporated into law constitutes fair use.
The case concerns the posting of standards like electrical, fire safety, and consumer safety codes that governments have incorporated by reference into law. In 2013, the American Society for Testing and Materials (ASTM), National Fire Protection Association Inc. (NFPA), and American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE)—organizations that develop standards—sued the nonprofit Public Resource for copyright and trademark infringement and unfair competition. The DC appeals court affirmed a trial court’s earlier decision: that the noncommercial dissemination of standards, as incorporated by reference into law, constitutes fair use.
Electronic Frontier Foundation (EFF) represented Public Resource in this win for public access to the law. The Library Copyright Alliance joined an amicus brief at an earlier phase of the case.
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