Digital Millennium Copyright Act Begins Fifth Triennial Rulemaking

By Ashlee Hodge, Senior Managing Editor for the IP Brief and Vice President of the IP Law Society at the Washington College of Law

The U.S. Copyright Office recently received the first round of comments pursuant to the fifth anticircumvention rulemaking for the Digital Millennium Copyright Act (DMCA). Law students at American University’s Intellectual Property Clinic submitted comments on behalf of Peter Decherney and the American Association of University Professors, who have requested an exemption for college and university professors and students, and Renee Hobbs and the Media Education Lab, who have requested an exemption for kindergarten through 12th grade educators.

For those not acquainted with the DMCA anticircumvention measures, the law criminalizes circumvention of technological measures (such as encryption on a DVD) that control access to copyrighted works, even when copyright infringement is not committed. But for this rulemaking process, a professor could face criminal penalties for circumventing access code on a DVD to copy a few short clips of a movie onto her computer to use in a classroom lecture, even if the actual copying was legal under the fair use doctrine.

While the purpose of such law is to deter bootlegging and various forms of copyright infringement, the Copyright Office recognizes that such protectionist measures often hamper what would otherwise often be fair and legal uses, such as excerpting and compiling short clips for use in a documentary film. As a result, the Office triennially requires anyone seeking an exemption to file a comment and demonstrate that the prohibition on circumvention of access controls has adversely affected their ability to make noninfringing uses of a particular class of works. Even petitioners who have been granted an exemption in previous rulemaking proceedings must make their case from scratch, as “prior exemptions will expire unless sufficient new evidence is presented in each rulemaking…”

If you are a college or university professor or student, or a K-12 educator, an exemption of the kind requested would greatly improve the depth of your educational experience, and now is the time to get involved. Over 54,000 co-petitioners believe that in this day and age, students are ill served without media as an integral part of education. Educators need the ability to use films as they use texts, without the burdens of switching discs or watching mandatory advertisements, all of which waste valuable classroom time and interrupt the learning process. However, the Copyright Office will not grant exemptions unless there is sufficient, concrete evidence of harm. Although the first round comments have been submitted, other individuals or organizations are encouraged to submit statements in support of any of the requested exemptions.

Currently, college and university professors as well as film and media studies students enjoy an exemption—but that is not a guarantee that the exemption will be awarded again. Rulemaking is a key aspect of democratic governance, where federal agencies such as the Copyright Office are able to take into account comments directly from the greater public. To learn more about what rights are at stake for educators and students, or to get involved, visit www.copyright.gov/1201 or email ipclinic@wcl.american.edu.

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