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DMCA Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies: It's Time to Submit Comments

A September 29th  Federal Register notice announced that the Copyright Office is soliciting comments, in accordance with provisions of the DMCA, that may exempt certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works.  The purpose of this proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make non-infringing uses due to the prohibition on circumvention.

This notice requests written comments from all interested parties, including representatives of copyright owners, educational institutions, libraries and archives, scholars, researchers and members of the public.  Written comments must be received no later than December 1, 2011. A notice of proposed rulemaking will be published in December 2011 that will identify proposed classes of works and solicit comments on those proposed classes, which will be no later than February 15, 2012.

The exemptions published for each three-year period are temporary and expire when the succeeding determination of the Librarian of Congress is published.  This rulemaking will examine adverse effects existing in the marketplace or likely to exist in the next three-year period to determine whether any exemptions to the prohibition on circumvention of technological protection measures that effectively control access to copyrighted works are warranted by the evidence raised during this rulemaking.

An Example of an Exemption

In the first anti-circumvention rulemaking two classes of works were exempted:

(1) Compilations consisting of lists of websites blocked by filtering software applications;

(2) Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness.

In the 2006 rulemaking, the Register determined that a refinement to determining a particular class of works was warranted.  The impetus for this refinement was a proposed exemption for film and media studies professors.  The proponents of the exemption demonstrated that the reproduction and public performance of short portions of motion pictures or other audiovisual works in the course of face-to-face teaching activities of a film or media studies course would generally constitute a non-infringing use.  They further demonstrated that the digital version of the motion pictures distributed on DVDs was not merely a preferred format, but that the digital version of these works was the only version of the work that met the pedagogical needs of the film and media studies professors.  They also showed that their otherwise non-infringing uses of the digital versions of these motion pictures were adversely affected by the prohibition on circumvention of technological measures protecting access to these works, because the Content Scrambling System (CSS) contained on most commercially released DVDs was an access control system that prevented the making of a compilation of film clips for classroom use.

It was determined that the proponents met their burden of proving that section 1201(a)(1) was adversely affecting film and media studies educators' ability to engage in non-infringing uses for the ensuing 3-year period and that no reasonable substitute for the pedagogically beneficial digital content was available or likely to become available in the next three years.