ARL Public Policy Briefing
May/June 2024
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Katherine Klosek, Director, Information Policy and Federal Relations
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Welcome new readers!
This May/June edition of the Public Policy Briefing includes details on the priorities of the Canadian Association of Research Libraries (CARL) in Canada’s 2024 federal budget: a commitment to adopt right-to-repair legislation, and investments in the Canadian Book Fund, Action Plan for Official Languages, and artificial intelligence (AI).
In other policy news from Canada, CARL published the Code of Best Practices in Fair Dealing for Open Educational Resources, which was adapted from its US counterpart and explores the legal and practical application of fair dealing in the context of the creation of open educational resources (OERs) in Canada. CARL issued a statement identifying considerations and concerns related to automatic textbook billing models; the statement encourages institutions to carefully analyze these models prior to adoption and to prioritize affordability, quality, flexibility, and genuine inclusivity above the cost savings these models claim to provide. And, CARL continues to monitor the Online Harms Act.
In the US courts, ARL joined an amicus brief asking the US Court of Appeals for the Ninth Circuit to uphold the server test, which provides that a website cannot be liable for copyright infringement for merely embedding content that is hosted on another website’s server. The DC Circuit held that Digital Millennium Copyright Act (DMCA) regulations are subject to the Administrative Procedure Act. In a positive development for fair users and documentary filmmakers in particular, the Tenth Circuit court of Appeals granted a petition for rehearing in Whyte Monkee Productions v. Netflix. The Supreme Court issued a disappointing ruling in Warner Chappell Music v. Nealy, holding that there is no time-based limit on the recovery of copyright infringement damages as long as the lawsuit is filed in accordance with the US Copyright Act’s three-year statute of limitations. And, a federal court held that the US Copyright Act preempted a non-negotiated contract claim because the contract undermined the objective of the Copyright Act; hopefully other courts will use a similar analysis.
In Congress, the US House Appropriations Subcommittee on Commerce, Justice, and Science proposed language in its FY 2025 appropriations bill that would prohibit federal agencies from using federal funding to implement the 2022 memo, “Ensuring Free, Immediate, and Equitable Access to Federally Funded Research.”
Finally, despite 700+ comments asking the US Department of Education to retain the Academic Libraries component of the IPEDS survey, the National Center for Education Statistics proposed eliminating the Academic Libraries component, citing budgetary concerns. Read on for details on how ARL will continue to collaborate with library and higher education associations on this issue.
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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Canada’s 2024 Federal Budget Reflects CARL Priorities
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Copyright and Fair Use/Fair Dealing
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Online Speech and Privacy
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US Federal Appropriations
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Canada’s 2024 Federal Budget Reflects CARL Priorities
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The Government of Canada tabled the 2024 federal budget in April. The budget includes a commitment to adopt right-to-repair legislation, which is intended to allow the circumvention of digital locks to diagnose, maintain, or repair a product. The government announced plans in its 2024 federal budget for right-to-repair consultations beginning this June.
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Canada Book Fund, Action Plan for Official Languages
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Also included in the Canadian federal budget was support for several initiatives that the Canadian Association of Research Libraries (CARL) has been advocating for: $10 million over three years to the Canadian Book Fund to provide Canadian authors and publishers with additional support (CARL continues to advocate for support for creating born-accessible materials for people with print disabilities through this fund); a precedent-setting $4.1 billion investment for the Action Plan for Official Languages, with the majority of the funding for the Action Plan for Official Languages 2023–2028: Protection-Promotion-Collaboration to be directed to the provinces for investment in community initiatives and programming, including education; $2.4 billion to artificial intelligence (AI). The overall investment is intended to support responsible development and adoption of AI and ensure the necessary infrastructure and skilled employees are available.
In light of the $4.1 billion committed to the Action Plan for Official Languages 2023–2028, CARL met with the Office of the Commissioner of Official Languages in May to discuss federal support for Francophone open educational resources (OER). CARL discovered that most of this funding is going directly to provinces and territories. CARL also learned that approximately $8.3 million is earmarked to support the creation and dissemination of scientific information in French (knowledge mobilization). CARL is exploring both options.
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Artificial Intelligence and Data Act (AIDA)
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In Canada’s 2024 budget, $5.1 million has been allocated to enforcing the Artificial Intelligence and Data Act (AIDA), legislation that CARL has been actively monitoring. AIDA, part of Bill C-27, the Digital Charter Implementation Act, and Canada’s first legislation addressing AI, is currently under committee consideration in the House of Commons. With the summer break, the bill is not expected to receive royal assent soon. While the federal government completed a “Consultation on Copyright in the Age of Generative Artificial Intelligence” earlier this year, CARL does not anticipate changes to copyright legislation with respect to AI in the near future.
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Copyright and Fair Use/Fair Dealing
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DC Circuit Court Holds Administrative Procedure Act Applies to DMCA Exceptions
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In June, the US Court of Appeals for the District of Columbia Circuit held that regulations promulgated by the US register of copyrights and approved by the librarian of Congress under the Digital Millennium Copyright Act (DMCA) are reviewable under the Administrative Procedure Act (APA). The implications of the ruling on existing exemptions, the current ninth triennial rulemaking cycle, and subsequent rulemakings are unclear. While this decision means that the librarian of Congress is subject to lawsuits for violating the APA in the DMCA context, it is unlikely that a court will find that the librarian granted an exemption that was not adequately supported by evidence provided by petitioners.
The ruling is the culmination of a lawsuit filed by trade associations representing medical device manufacturers, who claimed that an exemption to the DMCA's anti-circumvention provision violated the APA.
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Library Copyright Alliance Joins Amicus Brief in Support of Server Test for Copyright Liability in McGucken v. Valnet
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In an amicus brief in McGucken v. Valnet, the Library Copyright Alliance (LCA), Electronic Frontier Foundation (EFF), and Computer and Communications Industry Association (CCIA) asked the US Court of Appeals for the Ninth Circuit to uphold the server test, which provides that a website cannot be liable for copyright infringement for merely embedding 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 Ninth Circuit reaffirmed the server test in 2023 with its decision in Hunley v. Instagram, 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. In that case, LCA joined a brief led by EFF asking the court to affirm the server test to protect the ways that libraries and educators use links and embedding to inform and empower scholars, students, and other users.
The facts of the recent case, McGucken v. Valnet, are similar to those in Hunley v. Instagram. Elliot McGucken, an award-winning photographer, sued Valnet, a corporation that operates TheTravel.com, for infringing his copyright in 36 photos by embedding images from McGucken’s Instagram without permission in multiple articles on its website. The amicus brief ARL joined argues that linking information is a basic function of the internet that should not be subject to US copyright law’s strict liability regime. Subjecting libraries and other users to strict liability for embedding links would create a chilling effect and stifle freedom of expression online, which is at odds with copyright law’s constitutional purpose “to Promote the Progress of Science and useful Arts.”
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CARL Publishes Code of Best Practices in Fair Dealing
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The CARL-supported Code of Best Practices in Fair Dealing for Open Educational Resources was published in February 2024. The Canadian Code was adapted from its US counterpart and explores the legal and practical application of fair dealing in the context of the creation of open educational resources (OERs) in Canada. The Code is intended to empower Canadian creators and adopters of OERs to make use of fair dealing, while also fostering institutional and legal support for doing so. Adoption of the Code by educational institutions and the OER and copyright communities at large will benefit students and educators in Canada by not only ensuring that educational resources are high quality and accessible but by educating them on Canadian copyright and fortifying the balance of user and creator rights.
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US Tenth Circuit Court of Appeals Agrees to Rehear Case on Transformative Fair Use
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The Tenth Circuit agreed on May 13 to rehear Netflix’s appeal from an adverse fair use determination in Whyte Monkee Productions v. Netflix.
In March, a three-judge panel of the Tenth Circuit Court of Appeals concluded that Netflix’s use of funeral footage in its Tiger King documentary series was not “transformative” under the first fair use factor; the panel held that because the overall work did not comment on or criticize the funeral video itself, it was therefore disfavored as a fair use. The Library Copyright Alliance (LCA) then joined a brief with Authors Alliance, the Electronic Frontier Foundation (EFF), and Public Knowledge asking the court to grant Netflix’s petition for rehearing. Amici said the panel’s interpretation of the Supreme Court’s decision in Andy Warhol Foundation for Visual Arts v. Goldsmith was too narrowly focused on “artistic criticism and commentary,” which are only examples of transformative use. This limited interpretation could chill other long-favored transformative fair uses in documentary films and other expressive works, such as the inclusion of video clips and other materials that are of historical value or newsworthy. The brief cited the 2023 DC Circuit case ASTM v. Public.Resource.Org as an example of how even verbatim copying and posting of technical standards incorporated by reference into law was transformative because the purpose of the use—explaining the law—was different from that of the rights holders, who sought to explain industry best practices. This is a fair use even though the secondary use did not comment on the standards.
The Tenth Circuit now has granted Netflix’s petition for rehearing. ARL will provide updates on the rehearing and its implications for documentary filmmaking and other creative expressions.
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US Supreme Court Rules No Time Limit on Collecting Damages in Copyright Infringement Cases
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The Supreme Court ruled in Warner Chappell Music v. Nealy that the US Copyright Act “entitles a copyright owner to obtain monetary relief for any timely infringement claim, no matter when the infringement occurred,” as long as a copyright infringement lawsuit is filed in accordance with the act’s three-year statute of limitations.
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, all the way back to 2008. 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.
The Library Copyright Alliance (LCA) joined 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. In the brief, we explained that 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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Federal Court Holds US Copyright Act Preempts Non-negotiated Contract Claims
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The Northern District of California dismissed a complaint that an adhesion contract by X Corp. could be enforced to prohibit web scraping by Bright Data and its users. Based on its conflict preemption analysis, the court found that X’s state law claims undermined the objectives of Congress in enacting the US Copyright Act in three ways:
- First, X’s users own their data, and grant X a temporary non-exclusive license to use the data, so X has no right to exclude others from using the content. X’s scraping claims would enable X, a non-exclusive licensee, to block others from exercising rights that, under the Copyright Act, belong exclusively to X’s users.
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Second, enforcing X’s contractual scraping prohibitions would require Bright Data and its users to receive permission and pay X Corp. to use the copyrighted content, which would interfere with users’ exercise of the “statutory privilege of fair use.”
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Third, the anti-scraping provisions purported to give X “de facto copyright ownership over content that Congress declined to extend copyright protection to in the first place (e.g., likes, user names, short comments),” thereby shrinking the public domain in contravention of key copyright policy.
While this is just one decision, it is a promising development for libraries, researchers, and others whose work is inhibited by restrictive contracts.
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ARL, Higher Education Associations Urge US Department of Education to Retain Vital Academic Libraries Survey in IPEDS
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In partnership with the American Library Association (ALA), the Association of College and Research Libraries (ACRL), and the Association of Southeastern Research Libraries (ASERL), ARL strongly opposes the proposed removal of the Academic Libraries (AL) component from the annual National Center for Education Statistics IPEDS survey.
IPEDS—the Integrated Postsecondary Education Data System—is a critically important open and transparent dataset for higher education. ARL and ACRL have consulted on the library component of IPEDS for many years to help sustain its value to our community and to higher education broadly, and we are eager to continue that consultation with the Department of Education to ensure ongoing data collection and integrity.
The Academic Libraries component of IPEDS reflects the key educational role of libraries and their centrality to the mission of higher education. Academic libraries hold a unique position as the heart of their institutions: No other unit supports all other parts of the institution and its educational mission as libraries do.
Our comments demonstrate that:
- The AL component of IPEDS supports the agency mission and statutory obligation, as well as a higher education ecosystem that relies on this data.
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Data from the AL component of IPEDS is critical to understanding the value libraries provide to the institutional mission.
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Removal of the AL component from IPEDS—a mandatory and therefore comprehensive reporting system—will deprive institutions of the ability to effectively benchmark with peers for purposes of investment and resource allocation, particularly with respect to student enrollment and success.
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With the inclusion of academic library data, IPEDS is a unique longitudinal dataset that enables the higher education sector to understand the cost of information over time, as well as the correlation between research expenditures and the cost of information.
- The AL burden is both lower than other components of IPEDS and willingly met by libraries themselves.
ARL’s comments and collaboration with higher education associations were covered in Inside Higher Ed on May 10, “Academic Librarians Oppose Plan to Eliminate Key Federal Data.”
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US National Center for Education Statistics Submits Proposal to Eliminate Academic Libraries Survey
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The National Center for Education Statistics (NCES) reiterated its proposal on May 24 to eliminate the Academic Libraries survey in a submission to the Office of Management and Budget, citing budgetary reasons, despite more than 700 comments opposing this proposal. ARL collaborated again with the American Library Association (ALA), Association of Southeastern Research Libraries (ASERL), and the Association of College and Research Libraries (ACRL) to respond to the following questions:
- Is this collection necessary to the proper functions of the department?
- Will this information be processed and used in a timely manner?
- Is the estimate of burden accurate?
- How might the department enhance the quality, utility, and clarity of the information to be collected?
- How might the department minimize the burden of this collection on the respondents, including through the use of information technology?
Our comments address each of these points, and reiterate that the associations would support an alternative solution, including a transition to the US Institute of Museum and Library Services (IMLS). The comments will be posted at this link on Regulations.gov.
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CARL Issues Statement on Automatic Textbook Billing Models
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The “CARL Statement on Automatic Textbook Billing Models” was issued in March. The statement identifies a number of critical considerations and concerns related to these models including: restricting student and instructor selection and acquisition of course materials; reducing equitable access to textbooks; limiting library services related to course materials; and privacy issues associated with student data. The statement encourages institutions to carefully analyze these models prior to adoption and to prioritize affordability, quality, flexibility, and genuine inclusivity above the cost savings these models claim to provide. The statement draws on works and resources created by SPARC’s InclusiveAccess.Org project as well as other recent information and articles.
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Online Speech and Privacy
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ARL Asks Congress Not to Sunset Section 230 of Communications Decency Act
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Leaders of the US House Energy and Commerce Committee introduced a bill that would sunset Section 230 of the Communications Decency Act by December 2025. ARL joined a letter opposing the bill, and urging Congress to consider the broad implications that sunsetting Section 230 would have on libraries, educational institutions, and internet infrastructure providers. The letter was led by the Internet Infrastructure Coalition (i2C); other signatories include ALA, EDUCAUSE, Internet Archive, and Wikimedia Foundation.
In a May hearing by the House Energy and Commerce Communications and Technology Subcommittee, members of Congress asked questions about the scope of Section 230, such as whether it applies to generative AI, or to amplification or design features. Subcommittee members asked questions about whether to target reform or repeal proposals only to larger platforms; if there might be ways to address online harms without expanding liability; and about the consequences of sunsetting 230 without an alternative.
See more in “Protecting Section 230 to Benefit the Entire Internet Ecosystem,” a webinar by INCOMPAS.
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CARL Monitoring Online Harms Act
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CARL has been monitoring Bill C-63, the Online Harms Act. CARL participated in initial consultations on this bill in 2021. The legislation introduces a new regulatory framework to reduce harmful content online.
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US Federal Appropriations
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House Appropriations Subcommittee Proposes Obstructing Implementation of Public Access
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The US House Appropriations Subcommittee on Commerce, Justice, and Science (CJS) proposed language in its FY 2025 appropriations bill that would prohibit federal agencies from using federal funding to implement the 2022 memo, “Ensuring Free, Immediate, and Equitable Access to Federally Funded Research”; the memo offers guidance on how to make publicly funded research available to the public. The language in the appropriations bill is as follows:
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.’’
The subcommittee advanced the bill in June; it is scheduled for a markup by the full House Science Committee on July 9.
As a refresher, the subcommittee introduced this language in the FY 2024 CJS appropriations bill, but it was not included in the final FY 2024 consolidated appropriations package. ARL is in close touch with SPARC on this, and we will be in touch with our members if there are opportunities to reach out to Congressional offices.
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