(March 10, 2016) At the end of 2015, the U.S. Copyright Office released a notice of inquiry (NOI) requesting comments to inform its triennial rule-making under Section 1201 of the Digital Millennium Copyright Act (DMCA), which concerns adoption of “exemptions to the prohibition against circumvention of technological measures that control access to copyrighted works” (https://federalregister.gov/a/2015-32678). As the overview to the notice of inquiry states, the volume of requested exemptions and associated comments has grown dramatically with each three-year period. This has created significant process issues since each exemption has to be reintroduced, supported by evidence, considered by the Office, and readopted each time, regardless of whether any opposition to it is presented.
EDUCAUSE joined the Association of American Universities (AAU), the American Council on Education (ACE) and the Association of Public and Land-Grant Universities (APLU) in submitting comments led by AAU that urge the Office to change the Section 1201 process. In addition to reemphasizing the problems identified above, which create a significant, unnecessary drain on institutional resources, the associations expressed concern about the uncertainty the process creates for online learning. In this context, the associations noted how a lack of permanent exemptions for circumventions of rights management features to facilitate fair use might have a chilling effect on the use of appropriate resources “[d]espite evidence that Congress did not want section 1201 to encumber or prevent noninfringing uses of copyrighted works in educational and scholarly contexts.” They also argue that the current process for establishing exemptions cannot adequately respond to the pace of technological change, making it extremely hard for faculty, librarians, instructional designers and technologists, and general counsels to know if a given circumvention is truly covered by a given exemption or not.
With these and related factors in mind, the associations called for the Copyright Office, either alone or with Congress, to make the following changes to the Section 1201 process:
- An act of circumvention should only create legal liability when it results in copyright infringement.
- The rule-making process should be expanded to not just approve exemptions, but also to cover the acquisition of the applications necessary to utilize approved exemptions.
- Once an exemption has been established, its validity should be presumed unless sufficient evidence is presented to justify considering not renewing it.
- The process should incorporate an “equitable rule of reason” framework under which established exemptions serve as models of the types of circumventions generally permitted.
- The Office should seek to produce broader and simpler exemptions that are easier for the public to understand and apply.
The groups shared these views with the Office on March 3, 2016, with the NOI comment period set to end on March 25, 2016. Following this period, the Office plans to hold public meetings to gain additional feedback. EDUCAUSE will continue to collaborate with its fellow associations in seeking to inform the Office’s work in ways that advance teaching, learning, and research.
Jarret Cummings is director of policy and external relations at EDUCAUSE.