Katherine Klosek, Director, Information Policy and Federal Relations, ARL
Contributions from the Canadian Association of Research Libraries (CARL) by Katherine McColgan, Manager, Administration and Programs, CARL
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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 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.
This month in the US, a circuit court held that a website does not infringe a copyright owner’s public display right merely by embedding or linking to content, as long as the transmission of the content originates from an authorized source, and the copyright owner did not block the transmission.
The US government issued a statement supporting fair use in the consolidated multi-district litigation against OpenAI.
Former leaders of the National Archives and Records Administration (NARA) filed an amicus brief supporting the Presidential Records Act in ongoing litigation against NARA and President Trump.
Lawmakers in the House of Representatives passed the Legislative Branch Agencies Clarification Act, which would require a congressional commission to appoint the librarian of Congress; the bill would decouple the Copyright Office from the Library of Congress.
President Trump signed a stopgap measure that pauses, through December 11, implementation of the rule proposed by the Office of Management and Budget (OMB) on changes to the Uniform Guidance for federal grantmaking.
In Canada, by-elections were held for three districts on August 31, with the Liberal Party winning all three, one of which (Chicoutimi–Le Fjord) was previously held by the Conservative Party, helping the Liberal Party to maintain a slim majority in the House of Commons.
CARL submitted a brief to the Department of Finance as part of its pre-budget consultations. In the brief, CARL called upon the federal government to support research library priorities.
Read on for more details!
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Copyright and Fair Use/Fair Dealing
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Federal Funding for Research Library Priorities
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Copyright and Fair Use/Fair Dealing
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Help Inform ARL’s DMCA Accessibility Petition!
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ARL is working with the Georgetown Law Intellectual Property and Information Policy Clinic (iPIP) on a petition to allow libraries to circumvent technological protection measures in order to add accessibility features to digital content, in line with libraries’ obligations under the Americans with Disabilities Act (ADA) Title II. This is part of the Digital Millennium Copyright Act (DMCA) triennial rulemaking cycle. See our blog post on this for more information.
In the coming weeks, the clinic will develop a list of questions to gather evidence for the petition, through interviews or written submissions. If you or someone at your library would be willing to speak with the students—sharing examples of how technological protection measures have impeded remediation or assistive-technology access to digital works—please let me know.
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Circuit Court in US Adopts New Copyright Liability Standard for Embedding and Linking Web Content
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The US Court of Appeals for the Fifth Circuit posted its opinion that a website does not infringe a copyright owner’s public display right merely by embedding or linking to content, as long as the transmission of the content originates from an authorized source, and the copyright owner chose not to block the transmission.
The case, Emmerich Newspapers vs. Particle Media, concerns news publisher Emmerich’s copyright infringement claims against Particle, an aggregator that presents local and national news content into a single newsfeed for users.
Emmerich asserted that Particle infringed its display rights by showing Emmerich articles on Particle’s NewsBreak app. Emmerich also claimed that its URLs qualify as copyright management information—which users are barred from removing or altering under Section 1202 of the Digital Millennium Copyright Act (DMCA)—and that Particle violated the DMCA when it displayed Emmerich’s content under Particle’s own URLs.
Earlier this year, the Library Copyright Alliance—ARL and ALA—joined an amicus brief asking the Fifth Circuit to uphold the Ninth Circuit’s “server test” or risk introducing new potential liability for the fundamental functions of linking and embedding. The server test holds that “the owner of a computer that does not store and serve the electronic information to a user is not displaying that information, even if such owner in-line links to or frames the electronic information.” In Emmerich, the district court applied the server test, granting Particle summary judgment.
However, on appeal, the Fifth Circuit rejected the server test as inconsistent with the text of the Copyright Act, instead developing a new standard it termed a “transmit requirement.” Under the transmit requirement, copyright liability does not exist for a site that links to content when the content is transmitted by an authorized source like a copyright owner, and when the rightsholder chooses not to block the transmission even when they have the technical means to do so. While the court did not endorse the server test, the transmit requirement is functionally similar and likely sufficient to provide legal assurance to libraries and other websites that merely embedding or linking content is unlikely to be infringing. The court also held that URLs are not foreclosed as copyright management information under the DMCA, but remanded that issue to a lower court rather than deciding on the facts.
As an aside, the court’s analysis of when a copyright holder has the technical means to block transmission, but chooses not to, could be relevant in the context of generative AI. Citing Field v. Google, the court explained that website publishers typically communicate their permissions to internet search engines through meta tags, bot exclusion headers, or paywalls, and that failure to do so could be interpreted as granting an implicit license for others to scrape or otherwise access their content.
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US Government Supports Fair Use in Copyright Case Against OpenAI
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In a court filing, the United States Department of Justice (DOJ) explained that the government’s interest in the question of whether training AI models on written works constitutes fair use rests primarily on protecting US national security capabilities against foreign adversaries. The statement also touched on the harm to competition that could be wrought by an erroneous fair use ruling, as only the largest technology companies would likely have the capital necessary to pay licensing fees. The US asks the court to reject any argument that training LLMs on copyrighted texts violates copyright law. In particular, the US sharply criticized the “market dilution” theory for evaluating the fourth fair use factor, which the Copyright Office raised in its report on generative AI training.
The case consolidates 18 lawsuits alleging infringement through OpenAI’s use of books and news content, which are currently pending in the Southern District of New York. Amicus briefs are due October 15.
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US House Passes Legislative Branch Agencies Clarification Act
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The US House of Representatives passed a new version of the Legislative Branch Agencies Clarification Act (H.R. 10204), which was introduced by Rep. Griffith (R-VA) at the beginning of September. Like previous versions, the bill would require that a bipartisan congressional commission appoint the librarian of Congress, instead of being nominated by the president. The bill would also decouple the Copyright Office from the Library of Congress. The Re:Create Coalition, of which ARL is a member, and others have raised concerns about the implications for the library’s executive functions, and the development of the national collection. The bill was considered under suspension of the rules, and passed by voice vote.
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Federal Funding for Research Library Priorities
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Stopgap Funding Measure Pauses US OMB Implementation of Proposed Rule on Uniform Guidance Changes
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President Trump signed a continuing resolution (CR) that would extend federal funding at current levels into fiscal year 2027. The CR includes language that would block OMB’s proposed rule to revise the Uniform Guidance for federal grantmaking from taking effect until December 11, 2026, when the CR expires.
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CARL Submits Brief to Canadian Department of Finance
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CARL submitted a brief to the Department of Finance as part of its pre-budget consultations. In the brief, CARL called upon the federal government to support the report of the External Advisory Panel on the Creation and Dissemination of Scientific Information in French and dedicate a portion of funding to support library-led dissemination infrastructure and services; to invest $7 million over three years through the Tri-Agency and the Research Support Fund to enable Canadian research libraries to build the repository infrastructure and researcher support services required for successful implementation of the revised Tri-Agency Open Access Policy on Publications; to recognize, support and appropriately invest in Libraries and Archives Canada so that it can fulfill its vital role and obligations in preserving Canada’s documentary and cultural heritage, providing accessible knowledge, and serving as the enduring memory of the federal government; and, to acknowledge the critical role that research libraries will play in Canada’s National Artificial Intelligence Strategy through national infrastructures, data management, information literacy and AI literacy and create mechanisms that enable research libraries to seek financial support as partners in this work.
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Former US National Archives Leaders File Amicus Brief in Presidential Records Act Case
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Former archivists of the United States and other former high-ranking officials of the National Archives and Records Administration (NARA) filed an amicus brief arguing that the Presidential Records Act (PRA) is constitutional, and that the PRA reduces administrative burden on records retention for outgoing presidents while providing preservation assistance to incoming presidents.
The case, American Historical Association (AHA) v. Donald Trump, was brought by AHA and American Oversight in response to the Trump administration’s attempt to bypass the PRA. In April 2026, the Department of Justice Office of Legal Counsel (OLC) issued a memo claiming that the PRA infringes on executive autonomy and is therefore unconstitutional. Plaintiffs challenged the memo, asking the US District Court for the District of Columbia to declare the PRA constitutional, block the administration from relying on the OLC memo, and compel NARA and President Trump to comply with the PRA. Presently, an injunction is blocking the administration from disregarding the PRA and ordering officials to preserve all presidential and vice presidential records.
Oral arguments in the case are scheduled for October 16.
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About the Association of Research Libraries
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The Association of Research Libraries (ARL) is a nonprofit membership organization of research libraries and archives in major public and private universities, federal government agencies, and large public institutions in Canada and the US. ARL champions research libraries and archives, develops visionary leaders, and shapes policy for the equitable advancement of knowledge.
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