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ACRL Legislative Agenda

http://www.acrl.org/ala/mgrps/divs/acrl/issues/washingtonwatch/11agenda.cfm

 

Legislative Agenda 2011

A. EXECUTIVE SUMMARY

ACRL’s Legislative Agenda includes objectives for legislative action at the national level on issues that affect the welfare of academic and research libraries. These are in a rough priority order and include the following issues that ACRL will focus on in 2011:

1. Network Neutrality
2. First Sale/Licensing, Fair Use, and Anti-Circumvention
3. Section 215 of the USA PATRIOT Act
4. 
Government Information
5. Public Access to Federally Funded Research
6. Freedom of Information Act
7. Orphan Works

B. ACRL LEGISLATIVE AGENDA

   1.0 Network Neutrality    
Issue: Net neutrality opposes discrimination in Internet access by Internet Service Providers (ISP) whether it be sending or receiving content, applications, or services. This means that consumers can access any legal content or run any Internet applications regardless of their network provider. Current telecommunications laws are being revamped, but language prohibiting preferential treatment of network traffic has been removed. ISPs could decide to provide lots of bandwidth to certain customers and not to others; telecommunications companies could dictate which Internet sites get preferential treatment (e.g., a company could pay its carrier a premium to deliver movies, videos, etc.). As bandwidth is a limited resource, every prioritized packet pushes aside another packet that is deemed less important. Internet network owners could be allowed to decide on their own how and when to restrict content or different kinds of traffic. Library services could be impaired or blocked by providers, particularly if "free" services and content provided by libraries are given low priority.

Legislative History: Various pieces of legislation dealing with net neutrality have been introduced since 2006. H.R. 5273 Net Neutrality Act of 2006 was introduced by Representative Ed Markey (D-MA). H.R. 5417, The Internet Freedom and Nondiscrimination Act, sponsored by Rep. Jim Sensenbrenner (R-WI), was introduced in the 109th Congress, referred to committee and reported by committee and it died. The Senate introduced S. 2917 Internet Preservation Act in the 109th Congress, and it also died. In the 110th Congress, H.R. 5353 Internet Freedom Preservation Act of 2008 was introduced by Representative Ed Markey (D-MA) and Chip Pickering (R-MO) but again, it died. S. 215, The Internet Freedom Preservation Act, sponsored by Senator Byron Dorgan (D-ND), was introduced in the 110th Congress, and it also died. ).  In the 111th Congress, H.R. 3458 Internet Freedom Preservation Act of 2009 was introduced by Representatives Ed Markey (D-MA) and Anna Eshoo (D-CA), and it has been referred to the House Committee on Energy and Commerce. This is Markey’s third attempt at introducing net neutrality legislation. On May 11, 2010, H.R. 5257, The Internet Investment, Innovation, and Competition Preservation Act, sponsored by Rep. Clifford Stearns (R.-FL6) was introduced and referred to the House Committee on Energy and Commerce.

Current status: The 112th Congress has introduced several pieces of legislation dealing with net neutrality and they are: S. 74: The Internet Freedom and Broadband Promotion, and Consumer Protection Act of 2011 (introduced 1/25/11), H.R. 96: The Internet Freedom Act (introduced 1/05/11, H.R. 166: The Internet Investment, Innovation, and Competition Preservation Act (introduced 1/05/11, and S.J. Res. 6 and H.J. Res 37: Joint Resolution disapproving the rule submitted by the FCC (introduced on 2/16/11).

In February 2011, the House was particularly active with regard to net neutrality and in response to President Obama’s 2012 budget request, Rep. Walden (R-OR-2), offered an amendment that would “bar the Federal Communication Commission from using funds to implement the net neutrality order.” Several U.S. House subcommittees held hearings during the month of February and ALA, the Association of Research Libraries (ARL) and EDUCAUSE sent letters expressing opposition to the efforts to undermine the recently enacted net neutrality rules passed by the FCC. A joint resolution (S.J. Rex 6 and H.J. Rex 37) was introduced, disapproving the FCC net neutrality order.  The anti-net neutrality amendment offered by Rep. Walden passed.

On January 14, 2010, in response to the commission’s call for comments in the matter of Preserving the Open Internet Broadband Industry Practices, ALA affirmed its support for all six principles to maintain an open Internet by codifying the principles of network neutrality, including two new principles introduced by Federal Communications Commission Chairman Julius Genachowski. On April 6, 2010, the U.S. Court of Appeals for the District of Columbia “ruled that the FCC lacks the authority to require broadband providers to give equal treatment to all Internet traffic flowing over their networks.” 

Impact on Academic Libraries: The impact of privileged, or non-neutral, Internet access on free speech and the free choice of content, applications, and services would be significant for our patrons and could also slow down Internet access at, to, and from our institutions. We must maintain our ability to access information that may be in conflict with the corporate philosophy of the ISP without discrimination in the form of premium charges, degraded or impaired service, and slower network speeds.

Links to Other Information:
• Network (Net) Neutrality Recent History: From the American Library Association Issues and Advocacy site.
• Library of Congress Thomas (Legislative information from the Library of Congress):
For the text of the legislation mentioned in this brief.
• Free Press (Free Press is a national, nonpartisan organization working to reform the media)
• Public Knowledge (Washington, D.C., Public Interest Group):
• ALA Web site link to network neutrality information
• ALA Comments to the FCC In the Matter of Preserving the Open Internet GN Docket No. 09-191 Broadband Industry Practices
• ALA OGR Telecommunications and Broadband Issues Brief

ACRL Position: ACRL supports legislation to preserve the neutrality of the Internet and to ensure that ISPs do not discriminate against users by charging premiums, providing slower network speeds, restricting access, content, applications or services that may be in conflict with the corporate philosophy of the ISP.

   2.0 First Sale/Licensing, Fair Use, and Anti-Circumvention
Issue:
  First Sale/Licensing

Brief Background:  Built into the 1976 Copyright Act, the right of first sale was designed with the print world in mind.  The advent of e-books resulted in the loss these rights, as e-books could not be re-sold by the general public or, in the case of libraries, be provided in response to interlibrary loan requests. 

Current Status:  Licensing has introduced more restrictions and fewer protections.  The Amazon license, for example, states that Amazon reserves the right to change terms without notice.  Depending on Amazon’s choice, libraries could be put in a position of being unable to loan Kindles loaded with Amazon books.  Recently, Harper Collins stated that, as of March 7, 2011, its books may be checked out only 26 times before the license expires. After those views are exhausted, the e-books will either disappear or the library will be required to pay an additional fee.  While many academic libraries license “packages,” where there are some licensing precedents, there are still titles that they wish to acquire individually.  Further, they wish to take advantage of the smaller and mobile devices, and provide the flexibility which their users demand.  The ALA President announced that after a retreat held by the Equitable Access to Electronic Information Task Force (EQUACC), ALA will soon launch a website "dedicated to developing a model for e-book lending" (Michael Kelley, 2011).

Impact on Academic Libraries:  This issue has both financial and legal implications.  Apart from the additional cost implied by this new restriction, the licensing agreements that are emerging leave academic libraries with little recourse.  Finally, they are restricted in their ability to provide users with the ability to access certain titles through smaller and mobile devices and to meet user demands in this regard. 

ACRL position:  ACRL supports the doctrine of first sale, regardless of format.  ACRL also supports the right of libraries to enjoy parallel rights with e-books that they enjoy with print books, and to have that security included in licenses.

Issue:  Fair-use of digital materials/anti-circumvention
Brief Background/Legislative History:  According to Section 1201 (a) (1) of the Digital Millennium Copyright Act, the Librarian of Congress is allowed once every three years to adopt exceptions to the anti-circumvention provisions that place technological protections on copyrighted works.  However, nearly all requested exceptions have been denied.  Additionally, the statute does not permit exemptions for the manufacture and distribution of circumvention tools, thus making any approved exceptions impractical.

Current Status:  The latest triennial review for adopting exceptions to the anti-circumvention provisions of the DMCA Sec. 1201 began in early 2009.  In response to requests made by the Library Copyright Alliance (ALA, ACRL, and ARL), the Librarian of Congress in July 2010 issued a decision that broadens the exemption for the creation of film clip compilations for classroom and educational use to all college and university faculty regardless of academic discipline.  Now it is legal for college and university faculty in all disciplines to circumvent the Content Scrambling System (CSS) used on DVDs for teaching purposes.  Circumvention can also be used to incorporate short portions of new works for the purposes of criticism or commentary.  The exemption was expanded to include documentary films and noncommercial videos as well.

Impact on Academic Libraries:  The Digital Millennium Copyright Act negatively affects the ability of libraries and educational institutions to make fair use of digital materials.  Legitimate anti-circumvention tools are needed to allow fair use access to the complete range of digital resources being paid for by libraries and educational institutions. 

Links to Other Information:
• A Limit on Lending E-Books: http://mediadecoder.blogs.nytimes.com/2011/02/27/a-limit-on-lending-e-books/?scp=1&sq=ebook&st=cse; also http://www.nytimes.com/2011/03/15/business/media/15libraries.html?_r=1
• Michael Kelley, March 15, 2011 http://www.libraryjournal.com/lj/home/889672-264/ala_president_criticizes_harpercollins_ebook.html.csp
• Libraries Concerned About E-books: http://cjonline.com/news/local/2011-03-18/libraries-concerned-about-ebooks
• ALA Amicus Brief on Vernor v Autodesk:  http://www.eff.org/files/filenode/vernor_v_autodes/VernorAmicus.pdf
• ALA President Criticizes Harper Collins Ebook Lending Policy http://www.libraryjournal.com/lj/home/889672-264/ala_president_criticizes_harpercollins_ebook.html.csp
• Library Copyright Alliance (ALA, ACRL, and ARL) at URL:  http://www.librarycopyrightalliance.org/ 
• ALA Washington Office Issues & Advocacy:  Copyright:  http://www.ala.org/ala/issuesadvocacy/copyright/index.cfm
• ALA Washington Office District Dispatch Blog:  http://www.wo.ala.org/districtdispatch/?page_id=276
• Digital Millennium Copyright Act (DMCA):  http://www.copyright.gov/legislation/dmca.pdf
• U.S. Copyright Office – Rulemaking on Anti-Circumvention at URL:  http://www.copyright.gov/1201/

ACRL Position:  ACRL supports exceptions to the anti-circumvention provisions of the Digital Millennium Copyright Act to allow fair use access to copyrighted works; ACRL supports exemptions for the manufacture and distribution of circumvention tools in order to make such exceptions possible.

   3.0 Section 215 of the USA PATRIOT Act
Issue:
Privacy concerns with library and bookseller records continue due to the previous reauthorization of Section 215, as well as two other sections of the Patriot Act.  The Act increased the ability of law enforcement agencies to search library, telephone, e-mail communications, medical, financial, and other records. Specifically Section 215, often called the “library provision,” allows the FBI to order any person or entity to turn over library records, as long as the FBI states that it is for an authorized investigation to protect against international terrorism or clandestine intelligence activities.  ALA Office of Government Relations' Lynne Bradley has pointed out Section 215 has “long been the focus of ALA's efforts to seek reforms to the PATRIOT Act because it particularly addresses law enforcement access to any kind of tangible thing or records.” 

Legislative History:  The USA PATRIOT Act broadly expanded law enforcement’s surveillance and investigative powers and amended more than 15 different statutes, including the Electronic Communications Privacy Act of 1986 (ECPA), the Computer Fraud and Abuse Act (CFAA), the Foreign Intelligence Surveillance Act (FISA), and the Family Education Rights and Privacy Act (FERPA). The Act increased the ability of law enforcement agencies to search library, telephone, e-mail communications, medical, financial, and other records. Specifically Section 215 allows the FBI to order any person or entity to turn over library records, as long as the FBI states that it is for an authorized investigation to protect against international terrorism or clandestine intelligence activities.

On March 7, 2006, Congress renewed the USA PATRIOT Act, and President Bush signed the renewal of the legislation. The renewal did not include the major reforms the library community had desired. A sunset of December 31, 2009, was established for Section 215 of the USA PATRIOT Act.

On November 6, 2009, the House Judiciary Committee passed by a 16-10 vote H.R. 3845 USA Patriot Amendments Act of 2009, introduced by House Judiciary Committee Chairman John Conyers (D-MI) and Representatives Jerrold R. Nadler (D-NY) and Bobby Scott (D-VA). It has been referred to the House Committee on Intelligence. It would restore reader privacy by curbing the use of secret court orders and National Security Letters to obtain library and bookstore records about innocent people. Other key protections in the bill include improved judicial review of investigations, new protections for librarians and others who receive gag orders from the government, and more oversight of how USA PATRIOT Act powers are being used. Among the amendments for Section 215 are the following:

Section 215 Orders
• improves the standard for issuing a Section 215 order by requiring specific and articulable facts to show that the tangible things sought are relevant to an authorized investigation, other than a threat assessment;
• provides recipients of Section 215 orders with the ability to immediately challenge both the underlying order and any gag order associated with it;
• facilitates compliance with already existing minimization procedures to ensure proper safeguards pertaining to information collected via Section 215 orders; and
• prohibits a request for Section 215 records to a library or bookseller for documentary materials that contain personally identifiable information concerning a patron.

The Senate Judiciary Committee on October 28, 2009, reported out S. 1692, the USA PATRIOT Act Sunset Extension Act of 2009, introduced by Chairman Patrick Leahy (D-VT) and Senators Benjamin Cardin (D-MD) and Ted Kaufman (D-DE). Although several senators attempted a number of amendments, none of the amendments that would have improved protection of our civil liberties was passed. This bill would substantially weaken the reforms the library community has sought relevant to Section 215 and National Security Letters. On February 24, 2010, without enough time to reach a compromise on the differing bills in the House and Senate, the Senate voted by unanimous consent for an additional one-year extension of the three provisions.  On February 25, 2010, following the Senate’s action, the House voted 315-97 for an additional one-year extension.  President Obama signed the one-year extension into law (P.L. 111-141) on February 27, 2010.

Rep. Peter Hoekstra's (Michigan-R) bill, H.R. 6429 would extend the expiring provisions (orders for tangible things) of the USA PATRIOT Improvement and Reauthorization Act of 2005 and Intelligence Reform and Terrorism Prevention Act of 2004 from February 28, 2011 to February 29, 2012.  The bill was referred to the House Committee on the Judiciary to the Committee on Intelligence (Permanent Select) on November 18, 2010, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.

Current Status: As of March 11, 2011, the Senate Judiciary Committee approved a bill, the USA PATRIOT Act Sunset Extension Act of 2011 (S. 193), to reauthorize three expiring provisions of the USA PATRIOT Act and add important new safeguards for library and bookseller records. These safeguards include provisions such as requiring the federal government prove a terrorist or espionage connection before gaining access to library patron and circulation records.  This also now will apply to bookseller records as well.  For the first time, National Security Letter (NSL) statutes will be subject to sunset laws.  In addition, safeguards will be imposed on the roving wiretap authority under the Foreign Intelligence Surveillance Act (FISA). As of March 17, 2011, S. 193 is awaiting a vote by the entire Senate.

Impact on Academic Libraries:  Section 215 potentially increases government surveillance on college campuses and challenges long-standing library protections for library records, invading library users’ privacy, decrease library users’ confidence in libraries’ assurances of privacy, and prevents libraries from adhering to federal and state privacy laws.

Links to Other Information:
• S. 193 To extend the sunset of certain provisions of the USA PATRIOT Act, and for other purposes. http://www.gpo.gov/fdsys/pkg/BILLS-112s193is/pdf/BILLS-112s193is.pdf
• S. 290 (Placed on Calendar Senate) - USA PATRIOT Act Sunset Extension Act of 2011 http://www.gpo.gov/fdsys/pkg/BILLS-112s290pcs/pdf/BILLS-112s290pcs.pdf
• S. 291 (Placed on Calendar Senate) - USA PATRIOT Reauthorization Act of 2011 http://www.gpo.gov/fdsys/pkg/BILLS-112s291pcs/pdf/BILLS-112s291pcs.pdf
• S. 1692  USA PATRIOT Act Sunset Extension Act of 2009 http://www.gpo.gov/fdsys/pkg/BILLS-111s1692rs/pdf/BILLS-111s1692rs.pdf
• H.R. 3845  USA PATRIOT Amendments Act of 2009 http://www.gpo.gov/fdsys/pkg/BILLS-111hr3845rh/pdf/BILLS-111hr3845rh.pdf
• H.R. 6429  To extend expiring provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005 and Intelligence Reform and Terrorism Prevention Act of 2004 until February 29, 2012 http://www.gpo.gov/fdsys/pkg/BILLS-111hr6429ih/pdf/BILLS-111hr6429ih.pdf
• DOJ To Implement Provisions of Leahy-Authored Patriot Act Reauthorization Proposal 12/09.2010 http://leahy.senate.gov/press/press_releases/
• Attorney General Holder’s Letter to Senator Patrick Leahy http://judiciary.senate.gov/resources/documents/111thCongress/upload/120910HolderToLeahy.pdf
• USA PATRIOT Act (Washington Office) http://www.ala.org/ala/issuesadvocacy/advocacy/federallegislation/theusapatriotact/index.cfm
• Resolution on the Reauthorization of Section 215 of the USA Patriot Act (2009 Annual Conference) http://www.ala.org/ala/aboutala/offices/wo/reference/colresolutions/PDFs/section215.pdf
• Library Associations Statement on the USA PATRIOT Amendments Act of 2009 (PDF) http://www.ala.org/ala/issuesadvocacy/advocacy/federallegislation/theusapatriotact/house-jud-1pgrpsaFINAL%2010%2029%2009.pdf
• USA PATRIOT Issues For Campuses http://www.ala.org/ala/issuesadvocacy/advocacy/federallegislation/theusapatriotact/campusissues.pdf
• CRS Legal Analysis:  Libraries and the Patriot Act http://www.ala.org/ala/issuesadvocacy/advocacy/federallegislation/theusapatriotact/CRS215LibrariesAnalysis.pdf

ACRL Position:  ACRL supports legislation that will remedy those sections of the USA PATRIOT Act that infringe on the civil liberties of library users.  ACRL supports ALA’s position to continue to reform Section 215, the “library provision” of the USA PATRIOT Act. ALA supports passage of S. 193.

   4.0 Government Information
Brief Background/Legislative History:
  The Federal Depository Library Program (FDLP) has its roots in the early nineteenth century when the federal government began to take steps to ensure the public distribution of selected government documents.  The most recent revision to the law concerning the distribution of government documents occurred in 1962 (Title 44, United States Code).  As a result of major changes in the distribution of federal government information via the Internet as well as the significant economic hardships faced by many depository libraries, the FDLP model as it currently exists is rapidly becoming less sustainable. In recent years, a number of depository libraries have withdrawn from the FDLP.  Regional depository libraries, in particular, are finding the burden of maintaining print and microform legacy collections increasingly difficult.

Current Status:  The Joint Committee on Printing, a subset of the Senate Committee on Rules and the House Committee on Administration, apparently has no interest in changing the law to allow for the changes needed to make the FDLP more viable.  In September 2010, the Government Printing Office announced a consultant contract with Ithaka, a not-for-profit organization that focuses on assisting the academic world to utilize information and networking technologies, to develop recommendations for sustainable models for the FDLP for the 21st century and beyond.  A final report plus recommendation is expected to be issued in 2011.
ALA distributed its Resolution on Access to and Classification of Government Information to all members of the U.S. Congress and to the White House on March 2011 in recognition of Sunshine Week a national initiative to promote a dialogue about the importance of open government and freedom of information.   Passed during the 2011 Midwinter Conference, the resolution resolved that the ALA commends President Obama for establishing the National Declassification Agency and issuing Executive Order 13526 on Classified National Security Information and supports and encourages expanded initiatives to reform the U.S. classification system; urges Congress to pass legislation that expands protections for whistleblowers in the Federal government, such as the Whistleblower Protection Enhancement Act of 2010; urges the U.S. President, Congress, the federal courts, and executive and legislative agencies to defend the inalienable right of the press and citizens to disseminate information to the public about national security issues and to refrain from initiatives that impair these rights; and affirms the principle that government information made public within the boundaries of U.S. law should be available through libraries and the press without restriction.
Impact on Academic Libraries:  Many of the 1200-plus depository libraries are also academic libraries, including 22 regional depositories which are also members of the Association of Research Libraries.  If the burden of maintaining print and microform collections becomes too great, it is likely more depository libraries will seek to withdraw from the Federal Depository Library Program.  Three regional depository libraries have withdrawn from the program in the past two years, leaving forty-nine.  Withdrawing from the FDLP is a complex and lengthy process.  

Links to Other Information: 
• GPO Report - Regional Libraries in the 21st Century: A Time for Change http://wikis.ala.org/godort/index.php/GPO_Report Regional_Libraries_in_the_21st_Century:_A_Time_for_Change
• A Strategic Vision for the 21st Century (GPO) http://www.gpo.gov/congressional/pdfs/04strategicplan.pdf
• Ithaka Report:  Documents for a Digital Democracy:  A Model for the Federal Depository Library Program in the 21st. Century http://www.ithaka.org/ithaka-s-r/research/documents-for-a-digital-democracy
• Sign up for e-mail updates from Ithaka http://www.ithaka.org/ithaka-s-r
• GODORT Future of FDLP wiki http://wikis.ala.org/godort/index.php/Main_Page#Future_of_the_FDLP_Resources
• ALA Resolution on Access to and Classification of Government Information 2010–2011 ALA CD#19.1 http://www.wo.ala.org/districtdispatch/wp-content/uploads/2011/03/2011-MW-resolution-access-classification.pdf

ACRL Position:  ACRL supports appropriate revisions to Title 44, U.S. Code to make the Federal Depository Program more viable and adaptable to current conditions.  This would allow participating libraries to be relieved of excessive burdens in maintaining print and microform “legacy collections” and to take full advantage of the electronic distribution of government information.  ACRL supports the Government Printing Office’s implementation of authentication of electronic government information to assure public access.  The adoption of appropriate and necessary revisions to Title 44, U.S. Code, will facilitate an effective as well as economic maintenance of government document collections in depository libraries, including the provision of the best services possible to all library patrons, who will be able to obtain needed information efficiently and in a variety of formats.

   5.0  Public Access to Federally Funded Research   
Brief Background/Legislative History:
On December 26, 2007, the National Institutes of Health (NIH) Policy became mandatory with passage of the Consolidated Appropriations Act of 2007 (H.R. 2764). The Federal Research Public Access Act, first introduced in 2006, was reintroduced in the 111th Congress on June 25, 2009, by Senators Joseph I. Lieberman (I-CT) and John Cornyn (R-TX), cosponsors. The Federal Research Public Access Act of 2009 (S. 1373, FRPAA) aims “to help ensure free, timely online access to the published results of taxpayer funded research produced by 11 U.S. federal agencies and departments.” The Federal Government funds tens of billions of dollars in research annually.

Public access to federally funded research is part of an effort to ensure transparency in government and access to government information. FRPAA requires that federal agencies develop public access policies relating to unclassified research conducted by employees of that agency or from funds administered by that agency. It extends and advances the National Institutes of Health (NIH) Public Access Policy, which requires public access to published results of NIH-funded research no later than 12 months after publication via PubMed Central. FRPAA ensures that researchers, employed or funded by a federal agency with an annual research budget exceeding $100 million, who publish a manuscript based on the work done for the funding agency in a peer-reviewed journal must submit the electronic copy of the final manuscript to be made available in a free and stable archive or repository within six months of publication. The FRPAA has been introduced in the House and Senate. On January 12, 2010, ALA and ACRL submitted comments to the Office of Science and Technology Policy (OSTP) within the Executive Office of the President supporting increased public access to research funded by federal science and technology agencies.

Current Status: Legislation related to expanding public access to federally funded research has not yet been introduced during the 112th Congress. Before the 112th Congress, President Obama signed into law the America COMPETES Reauthorization Act of 2010 (Public Law 111-358). The law enacted two open access-related initiatives. The law establishes a working group to coordinate federal science agency research and policies related to the dissemination and long-term stewardship of the results of federally supported unclassified research. The law requires the Office of Science and Technology Policy (OSTP), in consultation with relevant federal agencies, to develop formal policies for the management and use of federal scientific collections, including policies for the disposal of collections, and to create an online clearinghouse for information on the contents of and access to federal scientific collections.
FRPAA has bipartisan support in both chambers and has momentum in Congress and from the wider public; it is endorsed by 120 US university presidents or provosts, 41 Nobel laureates, 16 House co-sponsors from both parties.

Impact on Academic Libraries: Unfortunately, access to research information paid for with tax dollars is limited at most universities and colleges. Academic libraries simply cannot afford ready access to most of the research literature that its faculty and students need. Scholarly journals that traditionally publish federally funded research have high subscription fees and, by devoting funds to them, we are unable acquire other important information resources. Open access to federally funded research, in both the natural and social sciences, from a wide array of federal agencies would substantially improve this situation. Indeed, the growth of PubMed Central as a result of the NIH Public Access Policy has already been of great benefit to the students, faculty, and communities we serve. Local, regional, and national scholarly communication programs will want to track the implementation of this policy in order to inform their response to additional proposed funder mandates.

Links to Other Information:
• COMPETES Reauthorization Act of 2010 (Public Law 111-358) http://www.gpo.gov/fdsys/pkg/PLAW-111publ358/pdf/PLAW-111publ358.pdf
• FRPAA in the Senate (S. 1373)
http://hdl.loc.gov/loc.uscongress/legislation.111s1373
FRPAA in the House (H.R. 5037)
http://hdl.loc.gov/loc.uscongress/legislation.111hr5037
• White House Office of Science and Technology Policy Public Access Policy Forum
• Alliance for Taxpayer Access and Scholarly Publishing and Academic Resources Coalition (SPARC)
• ALA Letter to Senate Homeland Security & Governmental Affairs Committee regarding FRPAA (September 29, 2009)
• ALA/ACRL Comments to Office of Science and Technology Policy (January 12, 2010)

ACRL Position:  ACRL supports enhanced access to federally funded research through open access publication and open data policies.

   6.0 Freedom of Information Act
Brief Background/Legislative History: 
The Freedom of Information Act (FOIA) was passed in 1966 (PL-89-487) and requires the federal government to respond citizen requests for documents except those in exempt categories.  In 1974 Congress imposed deadlines on agencies for filling these requests and allowed judicial review of agency decisions to classify documents.  In 1996 FOIA was amended to define ‘record’ as any information kept by a federal agency (required records), including any in electronic format.  In 2009 a bill was passed to amend FOIA to require Congress to specifically cite the provision used to make a record exempt from FOIA. 

Current Status:  An audit performed by OpenTheGovernment.org in May this year discovered discrepancies in different agency policies on open government practices.  Included in the Audit was the Department of Justice, whose open government policy resulted in the lowest possible ranking. The Department of Justice is responsible for enforcing FOIA requests.  On September 23rd the House passed S3717 which amends the Securities and Exchange Act of 1934, the Investment Company Act of 1940 and the Investment Advisors Act of 1940 to require certain disclosures under FOIA.  Prior to passage of this act the Securities and Exchange Commission benefited from unjustifiable FOIA exemptions.  This bill became Public Law No. 111-257 on October 5, 2010.  This law helps preserve citizens’ rights to federal records and makes certain exemptions to FOIA are narrowly implied.  On March 1, 2011, in Federal Communications Commission et al. v. AT&T Inc. et al., the Supreme Court ruled that “Corporations do not have “personal privacy” for the purposes of Exemption 7(C).”  AT&T argued that documents they submitted to the FCC in the course of an investigation were protected from release under FOIA by the privacy exemption.  However, the Court ruled personal privacy is for individuals and not corporations rejecting the argument that “personal” related to the statutory definition of “person” which includes corporations.  Because “personal” is not defined in the statute the Court applied its ordinary meaning, “individual.”  This ruling demonstrates the narrow application of exemptions under FOIA. 

Impact on Academic Libraries: FOIA is critical to research and teaching in academic communities.  The right of citizens to access government information with a bias toward openness and reasonable, clearly defined exemptions is essential to information seeking in academic communities.  FOIA allows researchers an opportunity to access government materials not published but still obtainable that may be important to research or teaching. 

Links to Other Information: 
• Open Government Plans Audit URL:   http://sites.google.com/site/opengovtplans/home/final-updated-rankings/final-rankings-1
• OMB Watch, “Audit Reveals Wide Variation in Agency Plans to Make Government More Open” URL: http://www.ombwatch.org/node/10968
• CQ Press, “Freedom of Information, 1995-1996 Legislative Chronology” URL: http://library.cqpress.com/cqpac/catn93-0000141422
• CQ Press, “Freedom of Information Act, 1984 Legislative Chronology” URL: http://library.cqpress.com/cqpac/catn81-0011176242
• Federal Communications Commission et al. v. At&T Inc. et al. URL: http://www.supremecourt.gov/opinions/10pdf/09-1279.pdf

ACRL Position:  ACRL supports protection of the Freedom of Information Act and seeks to promote transparency in government.

   7. Orphan Works    
Issue:
“Orphans” are works whose copyright holders cannot be identified or found – and are not made publicly available by libraries for fear that rights holders will come forward, initiate legal action, and demand statutory damages of up to $150,000 a work.

Brief Background/Legislative History: Originally introduced as The Orphan Works Act of 2006 (H.R. 5439) by Representative Lamar Smith (R-TX) in May 2006, the bill was folded into the Copyright Modernization Act of 2006 (H.R. 6052). Both the Senate and House of the 110th Congress introduced orphan works legislation. It re-emerged in the Senate as the Shawn Bentley Orphan Works Act of 2008 (S. 2913) and in the House of Representatives as the Orphan Works Act of 2008 (H.R. 5889). On September 26, 2008, the Senate amended the Shawn Bentley Orphan Works Act of 2008 (S. 2913), sponsored by Senator Patrick Leahy (D-VT). It was passed and referred to the House Committee on the Judiciary. The House bill died.

Current Status: No orphan works legislation has been introduced this session. However, the issues surrounding orphan works are likely to receive more attention in the coming months and it is unclear whether legislative activity will develop or would be helpful to our community in making orphans available to the public.

Links to Other Information:
• For current full text of H.R. 5889
• For current full text of S. 2913
• Open Congress S. 2913 information
• ALA OGR Copyright: Orphan Works Issues Brief

ACRL Position: ACRL would support orphan works legislation that is not unduly burdensome.

Submitted by ACRL Government Relations Committee: March 21, 2011.