ACRL Legislative Agenda 2016

PDF version of 2016 Legislative Agenda

ACRL’s annual Legislative Agenda lists objectives for legislative action at the national level on issues that affect the welfare of academic and research libraries. This document is issued each spring, prior to National Library Legislative Day, and focuses on issues that the U.S. Congress has recently taken, or will likely take, action on in the year ahead. ACRL is active in advocating for policy and legislation through the ALA Washington Office, as well as through coalition work with groups such as the Open Access Working Group and the Library Copyright Alliance (LCA). The following list is in priority order and includes the most important issues upon which ACRL will focus in 2016:

  1. Access to Federally Funded Research
  2. Curbing Government Surveillance

1. Access to Federally Funded Research

Background

The Fair Access to Science and Technology Research Act (FASTR) was originally introduced on February 14, 2013, with bipartisan support in both the House and the Senate. This bill has bipartisan support in both chambers, with Senators Ron Johnson (R-WI), Ron Wyden (D-OR), Edward J. Markey (D-MA), Brian Schatz (D-HI), and Christopher S. Murphy (D-CT) currently sponsoring this legislation in the Senate and Representatives Kevin Yoder (R-KS), Zoe Lofgren (D-CA), Marcy Kaptur (D-OH), Jim McDermott (D-WA), Anna G. Eshoo (D-CA), Jared Huffman (D-CA), and Mark Pocan (D-WI) currently sponsoring it in the House of Representatives.

Shortly after FASTR was first introduced in Congress, the Office of Science and Technology Policy directed federal agencies with R&D budgets in excess of $100 million to increase access to federally funded scientific research and gave added momentum to improve access to federally funded research.  While Congress did not fully enact the entire FASTR bill, significant progress was made in the passage of the Consolidated and Further Continuing Appropriations Act, 2015. The overall purpose of this law was to fund government activity through September 30, 2015, however language favorable to open access was included in various sections. For example, in the section on Labor, Health and Human Services, Education, and Related Agencies on page 961, it states,

Each Federal agency, or in the case of an agency with multiple bureaus, each bureau (or operating division) funded under this Act that has research and development expenditures in excess of $100,000,000 per year shall develop a Federal research public access policy that provides for

(1) the submission to the agency, agency bureau, or designated entity acting on behalf of the agency, a machine-readable version of the author’s final peer-reviewed manuscripts that have been accepted for publication in peer-reviewed journals describing research supported, in whole or in part, from funding by the Federal Government;

(2) free online public access to such final peer-reviewed manuscripts or published versions not later than 12 months after the official date of publication; and

(3) compliance with all relevant copyright laws.

Current Status. FASTR was refiled on March 18, 2015, in the Senate as bill S.779 by Sen. Cornyn (R-TX) and was refiled on March 19, 2015, in the House as bill H.R.1477 by Rep. Doyle (D-PA). On March 8, 2016, S.779 was moved out of the Committee on Homeland Security and Governmental Affairs and was placed on the Senate Legislative Calendar under General Orders allowing the bill to be considered as a stand-alone bill or as an attachment to another bill.

Impact on Academic Libraries. FASTR increases opportunities for academics to share research results across institutions and disciplines, collaborate widely, and reuse results. According to the FAQ published by the Scholarly Publishing and Academic Resources Coalition (SPARC), sharing the results of research will allow new research efforts to be accelerated resulting in greater innovation, new products and services, and long-term economic growth. In addition, articles and data available in a digital environment allow new fields of research and analysis to emerge through the use of computational analysis tools, which could revolutionize academic research.

Links to more information

FAQ for the Fair Access to Science and Technology Research Act (SPARC)

White House Office of Science and Technology memorandum for the Heads of Executive Departments and Agencies (February 22, 2013)

White House: Expanding Public Access to the Results of Federally Funded Research

White House: Response from Federal Agencies to the OSTP Memo (March 24, 2014)

Public Access Plans from Federal Agencies

ACRL Position. FASTR should be passed in order to codify White House Directives calling for public access to federally funded research and to extend the limited measures brought about by the 2015 Consolidated and Further Continuing Appropriations Act. We oppose unnecessarily long embargo periods and other measures that restrict public access to federally funded research.

2. Curbing Government Surveillance

Background

To give some history, in 2011, Congress voted to extend Section 215 of the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001) without addressing weaknesses in the law that allow the government to gather information about citizens’ private lives, including their reading habits and research interests. It is now known that Section 215 was used to compile records of the phone calls of customers of major U.S. telecommunications carriers, regardless of whether those customers were suspected of involvement in terrorism or any other illegal activity. In addition, the National Security Agency (NSA) collected metadata about Internet communications without warrants or probable cause. These actions have been supported by the Foreign Intelligence Surveillance Court, which has approved nearly all government applications to exercise its extensive surveillance powers, although this secret court is not subject to public or constitutional review.

On June 2, 2015, President Obama signed the USA Freedom Act, which weakened the abilities of the intelligence community to spy on citizens. The Act somewhat neutered the phone records surveillance program and provided transparency to the secretive Foreign Intelligence Surveillance Act Court overseeing the spying; it did not solve the broader digital surveillance problem. Certain provisions of the Foreign Intelligence Surveillance Amendments Act are scheduled to sunset in 2017, including Section 702, one of the main legal authorities the government relies on to engage in mass surveillance of U.S. citizen’s online communications.

Current Status. In January 2016, the House Judiciary Committee had a “members only” meeting to discuss Section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA) Amendment Acts, the law NSA relies on to operate its notorious PRISM surveillance program and to tap into the backbone of the Internet, also known as “upstream” collection. ALA is committed, at the first possible legislative opportunity, to reforming Section 702 of the Foreign Intelligence Surveillance Act (and any other applicable legal authorities) to preclude the warrantless “backdoor” search of U.S. citizens’ phone and Internet communications facilitated by the targeting of non-U.S. citizens domestically or abroad, and to meaningful and regular disclosure of the true scope of the government’s reliance on this practice after such a warrant requirement becomes law. Previously, ALA strongly supported the successful “Massie-Lofgren Amendment” to H.R. 2685, which – had it not later been stripped from that legislation – would have precluded NSA from using appropriated funds either to conduct Section 702 “backdoor” searches, or to work toward engineering “trapdoors” into digital standards, networks, or products to circumvent or defeat encryption protocols.

The Privacy and Civil Liberties Board’s July 2014 report on Section 702 of FISA, “called for the government to create and release, with minimal redactions, declassified versions of the current minimization procedures that govern the CIA’s, FBI’s and NSA’s use of information collected under that program.” However, on February 3, 2015, President Obama’s Administration publically released documents that fully implemented this recommendation and “has accepted virtually all recommendations in the Board’s Section 702 report … while also accepting most of the recommendations in the Board’s January 2014 report on the telephone records program conducted under Section 215 of the USA PATRIOT Act.” The board also said that President Obama’s Administration “has not implemented the Board's recommendation to halt the NSA's bulk telephone records program, which it could do at any time without congressional involvement.” There are calls to end the FISA Amendments Act and Executive Order 12333 mass surveillance programs and restore accountability for bad actors in the Intelligence Community. Whistleblowers are included in this group.

However, Speaker of the U.S. House of Representatives Paul Ryan (R-WI) inserted the Cybersecurity Information Sharing Act (CISA) into the omnibus bill subsequently signed by President Obama. This does reinsert much of NSA’s powers that existed in the PATRIOT Act. The law allows the sharing of Internet traffic information between the U.S. government and technology and manufacturing companies. The main provisions of the bill make it easier for companies to share personal information with the government, especially in cases of cybersecurity threats. Without requiring such information sharing, the bill creates a system for federal agencies to receive threat information from private companies. It also absolves the company sharing the information of any liability that may result from such an action. With respect to privacy, the bill includes provisions for preventing the act of sharing data known to be both personally identifiable and irrelevant to cybersecurity. Any personal information, which does not get removed during the sharing procedure, can be used in a variety of ways. These shared cyber threat indicators can be used to prosecute cybercrimes, but may also be used as evidence for crimes involving physical force. Section 104 of the act is the key section on Internet surveillance. It is titled “Authorizations for Preventing, Detecting, Analyzing, and Mitigating Cybersecurity Threats,” and it permits network operators to take three kinds of steps “for cybersecurity purposes.” First, network operators can monitor; second, they can operate defensive measures; and third, they can share information with others. The first two of these powers can be outsourced. With “written consent” a network operator can allow another entity to monitor its network and operate defensive measures on its behalf. This also means the parties involved don’t need to use the secret court to get permission. The text of the bill was incorporated by amendment into a consolidated spending bill in the U.S. House on December 15, 2015 (see the link for S.754 below for more information), which was signed into law by President Obama on December 18, 2015. The law will be in effect for ten years.

Impact on Academic Libraries. Companies (and the entities defined by Congress in this law) have access to a great deal of information about library patrons, such as records (including documentation of computer usage), circulation records, printing records, Internet histories, and interlibrary loan requests. For example, colleges and universities connect via the major Internet Service Providers (ISPs) who therefore have access to patrons’ personal Internet usage. The ISPs are allowed to monitor their networks regardless of Federal Trade Commission (FTC) or Federal Communications Commission (FCC) rules.

Links to more information

Letter from Department of Homeland Security expressing concerns about Act (July 31, 2015).

H.R.2029: Consolidated Appropriations Act, 2016 (12/18/2015: Became Public Law No.114-113)

S.754: Cybersecurity Information Sharing Act of 2015 (10/27/2015: Passed Senate)

CISA on District Dispatch

ACRL Position. ACRL joins ALA in support of “effective communication between the private sector and law enforcement in the interest of cybersecurity.” However, ACRL and ALA “take strong issue with the claim that the [Cybersecurity Act of 2015] will significantly enhance cybersecurity” (Cybersecurity Act of 2015, http://www.ala.org/advocacy/advleg/federallegislation/privacy/leg). As stated by ALA President Sari Feldman, [The Cybersecurity Act of 2015] would effectively create significant new mass surveillance capabilities for the NSA, FBI, and many other agencies and levels of government, while weakening government watchdogs charged with protecting Americans’ personal information and privacy.”

WATCHLIST

There are additional policy issues of great concern to academic librarians that are not included above because there is no pending legislation or we believe legislation may not be necessary. Nevertheless, if legislation does arise or becomes necessary, ACRL will advocate for the best interests of academic and research libraries by relying on past precedent and current analysis.

Net Neutrality. Network neutrality is the nondiscrimination of Internet access by ISPs, whether it be sending or receiving content, applications, or services. As stated by the ALA Washington Office, “Libraries provide essential services to the public through equitable public access to information and telecommunications services. All types of libraries – public, school, and academic - need affordable “big pipe” broadband connectivity to meet the ever-increasing needs of library users.” The loss of net neutrality would most threaten the high bandwidth applications and services that enable real-time collaboration, content creation, sharing, and learning by education and other community institutions, including libraries. ACRL supports efforts to preserve the neutrality of the Internet and to ensure that ISPs do not discriminate against users by charging premiums or restricting access, content, applications, or services.

FCC’s 2015 regulations supporting net neutrality were challenged in court and overturned early in the year.  At issue was the classification of ISPs by FCC as the less regulated “information service providers,” when they were being more heavily regulated as “telecommunications services” under the rules. Redefining its authority over ISPs, FCC in response reclassified broadband Internet as the more heavily regulated telecommunications service under Title II of the Telecommunications Act – an essential public utility, equally available to everyone. 

By August 2015, AT&T, CentryLink, and other ISPs, as well as several industry associations, had challenged FCC’s new rules in a case filed in the District of Columbia’s Circuit Court of Appeals. The court must decide if Congress gave FCC the authority to choose how Internet service should be classified and whether this change in classification is justified. Other issues to be considered in this case are whether FCC’s reclassification of ISPs allows the agency to control pricing and whether mobile Internet access would be regulated in the same way as wired Internet. A ruling is expected in spring 2016.

While compliance to net neutrality principles is reportedly widely observed in the industry, both the ISPs and FCC seem set to argue their positions to the bitter end. The filing by AT&T in August is the third time in the last ten years that FCC’s attempts to regulate Internet access have been challenged in court. Net neutrality is an issue all or part of which may end up being decided by the Supreme Court.

Copyright Legislation: An Overview

ACRL is especially interested in the nomination of the next Librarian of Congress, Dr. Carla Hayden, as she will be very influential on any future copyright legislation.

As of spring 2016, the U.S. House of Representatives Committee on the Judiciary, Subcommittee on Courts, Intellectual Property, and the Internet continues to engage in a comprehensive review of copyright law. No legislation is likely to be brought to the floor for some time as this subcommittee is in the early phases of its copyright review. Nonetheless, library associations are monitoring the following copyright issues. The Register of Copyrights has argued that United States Copyright Law is in need of reform and has urged Congress to undertake a comprehensive review. Numerous hearings on aspects of the law were held from 2013 through 2015. At this time it appears that no hearings are scheduled for 2016.

At this point none of these are expected to be passed out of committee before the end of the current session. On April 29, 2015, The Honorable Maria Pallante, register of copyrights and director of the United States Copyright Office, testified before the committee regarding the register’s perspective on copyright review. Pallante’s office had divided their recommendations into four categories with related issues. The most critical of these are the “eight issues that are ripe for legislative action.” These include:

  1. overhauling the music licensing provisions of the Copyright Act;
  2. codifying a resale royalty act for visual art;
  3. creating a tribunal for small copyright claims;
  4. enacting felony streaming provisions;
  5. updating the outdated exceptions that libraries, archives, and museums use;
  6. creating a framework to use orphan works;
  7. updating the exceptions for persons who are blind or visually impaired; and
  8. shifting the regulatory presumption in the Section 1201 rulemaking.

Of these, numbers five through eight are critical areas for monitoring by ALA and its divisions, including ACRL. For the latest statements on exceptions for persons who are blind or visually impaired, see http://www.librarycopyrightalliance.org/submissions/international/wipo. And see http://www.librarycopyrightalliance.org/storage/documents/1201NOILCAfinal.pdf for more information on Section 1201.

Fair use and preservation and reproduction exemptions for libraries are important features of U.S. Copyright Law, upon which we rely to provide vital services to users and to preserve important cultural heritage materials. Libraries have been responsible stewards of copyrighted works, mindfully balancing the interests of rights holders with the interests of the public.

Although aspects of current Copyright Law are certainly in need of reform, in particular the term copyright and certain requirements of the Digital Millennium Copyright Act (DMCA), a revision should not seek to limit or constrain critical exemptions such as fair use (Section 107), reproductions by libraries and archives (Section 108), and the limitations of first sale (Section 109). There remains a real possibility that opening the law for revision will have unintended negative consequences for libraries. If copyright legislation were introduced, ACRL would urge Congress to resist over­engineering the law to respond to specific technological challenges, focusing instead on the essential purpose of the law: to promote the progress of science and the useful arts.

Fair Use.  Fair use, codified under Section 107 of the Copyright Act, allows reproduction and other uses of copyrighted works for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. We do not expect any legislation on this issue for some time. Currently, ACRL believes that Section 107 of the Copyright Act requires no change. For further information about this issue, see this statement by the LCA on January 28, 2014, to the U.S. House of Representatives Committee on the Judiciary for a hearing on the scope of fair use.”

“Making Available” Right. According to its website, the Copyright Office is “undertaking a study to assess the state of U.S. law recognizing and protecting ‘making available’ and ‘communication to the public’s rights for copyright holders.” The United States has formal agreements, known as the World Intellectual Property Organization (WIPO) Internet Treaties, with other countries that “obligate member states to give authors of works, producers of sound recordings, and performers whose performances are fixed in sound recordings the exclusive right to authorize the transmission of their works and sound recordings.” This language was added into the DMCA in 1998, but U.S. law was not changed to include these rights, assuming that the rights were adequately covered by Title 17. As a result, there is frequent argument about what rights are protected and what rights are maintained by libraries to make copies available for lending.

In 2014, Congress asked the Copyright Office “to review and assess (1) how the existing bundle of exclusive rights under Title 17 covers the making available and communication to the public rights in the context of digital on-demand transmissions such as peer-to-peer networks, streaming services, and music downloads, as well as more broadly in the digital environment; (2) how foreign laws have interpreted and implemented the relevant provisions of the WIPO Internet Treaties; and (3) the feasibility and necessity of amending U.S. law to strengthen or clarify our law in this area.”

As part of this review of the “making available” and “communication to the public rights,” LCA provided a document as public comment on April 4, 2014. The results of this study by the Copyright Office are not available, and no legislation has been introduced as a result.

Library Copyright Alliance Statements

Together with ALA and the Association of Research Libraries, ACRL participates in the LCA to work jointly on copyright issues, through actions such as:

LCA Submits Comments on Section 1201 of the Digital Millennium Copyright Act (March 3, 2016)

LCA Response to the U.S. Copyright Office Notice of Inquiry on Mass Digitization Pilot Program (October 9, 2015)

LCA Joins Reply Comments on 1201 Exemptions for Proposed Class 1 Audiovisual Works (May 1, 2015)

LCA Joins Reply Comments on 1201 Exemptions for Proposed Class 3 Audiovisual Works (May 1, 2015)

Preservation and reproduction exceptions. Congress enacted Section 108 of the Copyright Act in 1976 to provide libraries and archives with a set of clear exceptions with regard to the preservation of unpublished works; the reproduction of published works for the purpose of replacing a copy that was damaged, deteriorating, lost, or stolen; and the making of a copy that would become the property of a user. Library exceptions in Section 108 supplement, and do not supplant, the fair use right under Section 107. U.S. libraries spend over $4 billion a year acquiring books, films, sound recordings, and other materials. The objective of the Section 108 is to maximize the benefits of this enormous investment for current users and to preserve it for future generations.

District Dispatch: Jim Neal Represents Libraries at House judiciary Subcommittee Copyright Hearing

HathiTrust.  Statement on the Resolution of Authors Guild v HathiTrust.  January 8, 2015.

Andrew Albanese, “Authors Guild Drops HathiTrust Case,” Publishers Weekly, January 8, 2015.

Orphan Works. Orphan works are copyrighted items whose owners/authors are difficult or impossible to locate. Libraries have long sought to reduce the undue burden to researchers in conducting good faith efforts to locate owners and to limit liability of copyright infringement. LCA has been active in recent conversations at the Copyright Office about orphan works. In April 2014, LCA comments made three points: there is no consensus on legislation concerning orphan works; there is consensus that extended collective licensing will not be an effective solution for mass digitization, even just for books; and the best practices for fair use developed by user communities are an appropriate approach for addressing issues relating to orphan works and mass digitization. Additional comments from May 204 responded to issues raised during the March 2014 public meeting. LCA further clarified its positions to the Copyright Office in June 2015 via letter and through a detailed reply. As stated by the ALA Washington Office, “. . . in light of important new fair use and injunction-related jurisprudence since Congress last considered this matter – [libraries] do not oppose legislation broadly but do not need or support legislative reform to address their own needs or those of the public.” Most recently, in July 2015, LCA responded to questions from the Copyright Office in a Notice of Inquiry on Copyright Protection for Certain Visual Works.

The Digital Millennium Copyright Act. The DMCA places technological protections on copyrighted works, which negatively affects the ability of libraries and educational institutions to make fair use of digital materials. According to Section 1201 (a) (1), the Librarian of Congress is allowed once every three years to adopt exceptions to the anticircumvention provisions. LCA submitted comments to the U.S. Copyright Offfice on March 3, 2016, which propose substantive amendments to Section 1201 and procedural changes to the rulemaking process. The LCA commentary:

  • addresses a summary of recommendations to fix Section 1201:
  • explains the central flaw of Section 1201;
  • discusses efforts to correct this flaw both before and after enactment;
  • describes how the courts have wrestled with this flaw, leading to a split in circuit courts of appeal;
  • explains how the exemption rulemaking process has failed to meet the challenges posed by this flaw; and, finally,
  • LCA proposes necessary amendments to Section 1201