1 The U.S. Copyright Office’s Anticircumvention Rulemaking David O. Carson General Counsel United States Copyright Office ALAI Congress June 14, 2001

2 ©Describe Digital Millennium Copyright Act’s provisions on circumvention of technological measures that control access to works and that control exercise of other exclusive rights of the author (e.g., copying) ©Describe the rulemaking by the Register of Copyrights and Librarian of Congress to determine exemptions from the prohibition on circumvention of technological measures that control access to works ©Describe the legal requirements ©Describe the process ©Explain the results Overview

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4 ©Implementation of WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty ©Limitation of Copyright Infringement Liability for Online Service Providers ©Other Issues The Digital Millennium Copyright Act of 1998

5 Anticircumvention: Core Provision/Core Controversy WCT (Art. 11) & WPPT (Art. 18) require parties to: “provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law”

6 Anticircumvention: Core Provision/Core Controversy ©What are “adequate legal protection” and “effective legal remedies”? ©Prohibition on conduct ©Prohibition on devices ©Distinguishing legitimate multipurpose devices from “black boxes” ©What is the proper balance concerning noninfringing uses? ©Practical impact on exercise of fair use and other exceptions

7 Anticircumvention: Core Provision ©2 types of prohibitions on circumvention of technological measures: ©Prohibition on conduct ©Prohibition on devices

8 Structure of the Prohibition on Circumvention Two categories of technological measures : ©Access control technologies (e.g., password protection, encryption) ©Circumvention prohibited ©Devices prohibited ©“Copy” control technologies ©Devices prohibited ©No ban on circumvention, because ©It’s already unlawful (infringement) ©Fair use considerations

9 Prohibited Devices Devices are banned if they: ©are primarily designed or produced for the purpose of circumventing; or ©have only limited commercially significant purpose or use other than circumventing; or ©are knowingly marketed for use in circumventing

10 Exceptions to Prohibitions ©Library browsing exception (conduct/access) ©Law enforcement, intelligence, etc. ©Reverse engineering (decompilation) ©Encryption research (access protection only) ©Prevention of access of minors to material on the Internet. (access protection only) ©Privacy (conduct/access only) ©Security Testing (access protection only)

11 Anticircumvention Rulemaking 17 USC § 1201(a)(1)(A) Circumvention of copyright protection systems “No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2- year period beginning on the date of the enactment of this chapter.”

12 Anticircumvention Rulemaking 17 U.S.C. §1201 (a)(1)(A) (B) The prohibition contained in subparagraph (A) shall not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title, as determined under subparagraph (C).

13 Anticircumvention Rulemaking (C) During the 2-year period described in subparagraph (A), and during each succeeding 3-year period, the Librarian of Congress, upon the recommendation of the Register of Copyrights, who shall consult with the Assistant Secretary for Communications and Information of the Department of Commerce and report and comment on his or her views in making such recommendation, shall make the determination in a rulemaking proceeding on the record for purposes of subparagraph (B) of whether persons who are users of a copyrighted work are, or are likely to be in the succeeding 3-year period, adversely affected by the prohibition under subparagraph (A) in their ability to make noninfringing uses under this title of a particular class of copyrighted works.

14 Anticircumvention Rulemaking In conducting such rulemaking, the Librarian shall examine - (i) the availability for use of copyrighted works; (ii) the availability for use of works for nonprofit archival, preservation, and educational purposes; (iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; (iv) the effect of circumvention of technological measures on the market for or value of copyrighted works; and (v) such other factors as the Librarian considers appropriate.

15 Anticircumvention Rulemaking © Notice of Inquiry, 24 Nov © 235 initial comments received by 17 Feb © 129 reply comments received by 31 Mar © 5 days of hearings in Washington DC and at Stanford University, California © 34 witnesses © representing over 50 groups © 28 post-hearing comments © Recommendation and Final Rule issued 27 Oct. 2000

16 Anticircumvention Rulemaking Issues: ©What is a “particular class of works”? ©Can a “class of works” be defined by reference to the status of the user (e.g., an academic researcher), or by reference to the type of use (e.g., fair use)? ©Conclusion: A “class” of works must be based on attributes of the works themselves, and not by reference to external criteria such as the intended use or users of the works ©Section 102 categories of works, or some subsets of those categories, must be the starting point in determining what a “class” is.

17 Categories of Works (17 U.S.C. § 102) (1) literary works; (2) musical works, including... words; (3) dramatic works, including... music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.

18 Anticircumvention Rulemaking Issues: ©….What is a “particular class of works”? © Classification must begin by reference to attributes of the works themselves, but could then be narrowed by reference to the medium on which the works are distributed, or even to the access control measures applied to them.

19 Anticircumvention Rulemaking Issues: ©What must the proponents of an exemption prove? ©Burden is on proponent to prove that the prohibition on circumvention has had or is likely to have a substantial adverse effect on noninfringing use of the particular class of works ©“Distinct, verifiable and measurable impacts” (Commerce Committee Report) ©“Mere inconveniences, or individual cases, do not rise to the level of substantial adverse impact” (Judiciary Committee Section-by-Section analysis) ©Because prohibition was not yet in place, proof that access control measures have had adverse impact would suffice

20 Anticircumvention Rulemaking: Exemptions 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.

21 Anticircumvention Rulemaking: Problems with Proposals ©Proposal did not identify a “particular class of works” ©Proponent did not demonstrate actual harm or likelihood of harm. Instead, proponent simply made policy arguments and predictions of harm.

22 Anticircumvention Rulemaking: Rejected Classes (1) ©Works embodied in copies that have been lawfully acquired by users or their institutions who subsequently seek to make noninfringing uses thereof. [DFC, NTIA] ©Audiovisual Works on DVDs [EFF] ©“Fair Use Works” (e.g., scientific & social databases, academic monographs & treatises, scholarly journals, textbooks, law reports, educational audiovisual works) [AAU] ©“Thin Copyright Works” (e.g., US government works, factual works, scholarly journals, databases, maps, newspapers)[AAU]

23 Anticircumvention Rulemaking: Rejected Classes (2) ©Material that cannot be archived or preserved ©Sole source works ©Video games on dedicated platforms ©Reverse engineering of computer programs & other digital works ©Encryption research ©Public broadcasting

24 Anticircumvention Rulemaking: Legislative Recommendations ©Exempt all works protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness ©Clarify consequences when a technological measure controls both access and copying ©Perhaps, clarify “class of works”

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