Copyright Office Exempts Five Classes of Works from DMCA Anti-circumvention Provisions | Practical Law

Copyright Office Exempts Five Classes of Works from DMCA Anti-circumvention Provisions | Practical Law

The US Copyright Office announced a new rule designating five classes of copyrighted works exempted from the Digital Millenium Copyright Act's anti-circumvention provisions. The rule goes into effect on October 28, 2012.

Copyright Office Exempts Five Classes of Works from DMCA Anti-circumvention Provisions

by PLC Intellectual Property & Technology
Law stated as of 30 Oct 2012USA (National/Federal)
The US Copyright Office announced a new rule designating five classes of copyrighted works exempted from the Digital Millenium Copyright Act's anti-circumvention provisions. The rule goes into effect on October 28, 2012.
On October 26, 2012, the US Copyright Office announced a rule exempting certain noninfringing uses of certain copyrighted works from the Digital Millennium Copyright Act's anti-circumvention provisions.
The rule follows the Copyright Office's fifth triennial rulemaking proceedings under Section 1201(a)(1)(C) of the Copyright Act. Proponents seeking exemptions under this provision must show that:
  • Uses affected by the anti-circumvention provision are or are likely to be noninfringing, for example, as a fair use.
  • As a result of a technological measure controlling access to a copyrighted work, the statutory prohibition causes or in the next three years is likely to cause, a substantial adverse impact on those uses.
The classes of exempted works and uses are:
  • E-books to enable read-aloud functionality or other assistive technologies. This exemption permits the circumvention of e-books distributed with technological control measures to allow blind and other disabled persons to use screen readers and other assistive technologies, regardless of whether an accessible copy is available. This exemption only applies where the rights owner is compensated for a lawfully obtained copy that is made generally available to the public.
  • Mobile phones to enable software interoperability. The Copyright Office renewed the current exemption permitting the circumvention of software on mobile phones to enable interoperability with non-vendor approved software applications (jailbreaking). While proponents sought to broaden the exemption to cover tablet devices, the Copyright Office found that the record did not support this extension. In particular, it noted that the class of tablet devices is currently too broad and ill-defined and therefore it would be difficult to arrive at an appropriate scope for the proposed extension.
  • Mobile phones to enable interoperability with alternative networks This exemption permits the circumvention of software on mobile phones to enable connectivity with alternative wireless networks (unlocking). However, the Copyright Office found that there are increasingly alternatives to circumvention due to carriers' willingness to unlock devices and the availability of new unlocked devices. Therefore, the exemption only applies to mobile phones acquired before or within 90 days of the effective date of the exemption.
  • Excerpts from motion pictures for commentary, criticism and educational uses. This exemption permits the circumvention of motion pictures on DVDs and delivered using online services for use in noncommercial or documentary videos, non-fiction multimedia e-books and certain educational uses. However, the exemption does not apply to use of excerpts from fictional films, as the Copyright Office found the proponent's record did not support a finding of fair use.
  • Motion pictures and other audiovisual works to enable captioning and descriptive audio. This exemption permits the circumvention of motion pictures on DVDs and delivered using online services to research and develop players that render captions and deliver descriptive audio for people who are blind, visually impaired, deaf or hard of hearing.
The Copyright Office did not approve proposed exemptions for:
  • Accessing public domain works, because circumvention for this purpose is lawful.
  • The circumvention of video game console access controls because the Copyright Office found the proponents failed to establish a noninfringing use and that the controls would likely have a substantial adverse impact.
  • The circumvention of access controls on personal computers to enable software interoperablity because the proponents failed to provide specific supporting evidence.
  • The copying of motion pictures and other works on DVDs and other media for personal use (space shifting), as the Copyright Office found that the proponents failed to establish this use as noninfringing.
The rule is effective as of October 28, 2012.