LegiStorm

Summary:

Congress passed the Digital Millennium Copyright Act (DMCA) in 1998, in part, to help copyright owners protect their exclusive rights against infringement facilitated by digital technologies, including the Internet. Section 1201 of the DMCA outlaws circumvention of any access control devices, such as password codes, encryption, and scrambling, that copyright owners may use to protect access to copyrighted works. The DMCA's prohibition on circumvention is not absolute, however. In addition to several statutory exceptions to the general anti-circumvention provision, the DMCA authorizes the Librarian of Congress, upon the recommendation of the Register of Copyrights, to grant temporary exemptions in order to ensure that the public may be able to use certain copyrighted works in non-infringing ways, including engaging in "fair use" of such works. Exemptions to the prohibition on circumvention of access controls are granted every three years, following a notice-and-comment rulemaking proceeding that the Register of Copyrights conducts. There have been three determinations made by the Librarian of Congress to date, in 2000, 2003, and 2006. At the conclusion of the Copyright Office's third "§ 1201 rulemaking" proceeding, the Librarian of Congress recognized six exemptions that are currently in effect. These exemptions, which expire on October 28, 2009, permit the circumvention of access control devices, under specified circumstances, in order to (1) make compilations of video clips for film and media studies courses; (2) archive obsolete computer programs or games; (3) bypass "dongles," or hardware locks, that are obsolete; (4) use read-aloud functions or screen readers with e-books; (5) connect wireless telephone handsets to communication networks; and (6) test for or correct security flaws in works distributed on compact discs. On October 6, 2008, the Copyright Office initiated a fourth § 1201 rulemaking by publishing a notice in the Federal Register that sought written comments from all interested parties concerning evidence of adverse effects of the DMCA's circumvention prohibition on noninfringing uses of certain classes of works. Once these proposals for exempted classes of works are received, the Copyright Office will publish a notice of proposed rulemaking and then hold a series of hearings in the spring of 2009 in which proponents and opponents of the proposed exemptions may present their views. This report reviews the statutory basis for the triennial exemptions, explains the Copyright Office's rulemaking process pursuant to § 1201 of the DMCA, summarizes the exemptions granted and rejected in 2006, and describes public reactions to the 2006 exemptions. In addition, it examines provisions of a bill from the 110th Congress, H.R. 1201, the Freedom and Innovation Revitalizing U.S. Entrepreneurship Act of 2007 (FAIR USE Act of 2007), that would have codified the 2006 exemptions and thus made them permanent. The bill would also have authorized six additional exemptions, in which technological protection measures may be circumvented to accomplish the following purposes: (1) instructors wishing to make a compilation of portions of audiovisual works for educational use in a classroom; (2) consumers wanting to skip past or avoid commercials or personally objectionable content in an audiovisual work; (3) consumers interested in transmitting a work over a home network, but not in order to upload that work to the Internet for mass, indiscriminate redistribution; (4) individuals wishing to gain access to one or more public domain works that are included in a compilation consisting primarily of works in the public domain; (5) reporters, teachers, and others wanting to gain access to a work of substantial public interest solely for purposes of criticism, comment, news reporting, scholarship, or research; and (6) a library or an archive needing to preserve or secure a copy or to replace a copy in its collections that is damaged, deteriorating, lost, or stolen.