Last week I wrote, but had not yet posted, a comment about the proposed copyright reform in Brazil and the more nuanced approach they took to anti-circumvention rules that protect technological systems intended to prevent unauthorized access. In the course of that discussion I again criticized the Library of Congress’ long delay in announcing new classes of exceptions to the US anti-circumvention provisions. I expressed the hope that, after waiting so long, they would at least get it right.
They did.
Before I had a chance to publish my post, the new exceptions were released, albeit eight months late. Also, an important appellate court opinion about the DMCA anti-circumvention rules was handed down. So now I have three points to make about the DMCA and anti-circumvention rather than just one, and taken together they constitute my first ever optimistic writing about this subject.
First, the new DMCA exceptions announced today by the Library of Congress include the broader exception for higher education that many of us asked for during the rule-making proceedings. Indeed, the language is broader than I dared hope, apparently allowing circumvention of DVDs for a broad array of purposes in higher education. Certainly all professors can now circumvent for the purpose of compiling clips for teaching, as well as for incorporating clips into larger scholarly works. Documentary film-making and non-commercial videos seem also to be able to circumvent for purposes of criticism and comment using short portions of a protected film. Indeed, this exception comes close to allowing circumvention (of one type of media) for most fair uses, although it does not quite get us to that point.
The new exceptions also include a provision to allow circumvention of e-book technological protections when necessary to enable a read aloud or screen reader functions. This exception also addresses a problem that higher education has long felt when accommodating students with a visual disability.
Second, this case out of the Fifth Circuit, involving software used to control “uninterruptable power supply” (UPS) machines, made a very clear statement that the DMCA’s protection of DRM systems “prohibit only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners…. Without showing a link between “access” and “protection” of copyrighted work, the DMCA anti-circumvention provision does not apply.” The Court quotes another circuit for the proposition that the DMCA creates no additional rights other than what the copyright law already grants; it merely provides for a different form of protecting those rights. With this language we seem to move even further down the path toward saying that anti-circumvention is not prohibited when the purpose for which access is sought would be a fair use.
Which gets me to my third point, about the proposed copyright reform in Brazil. As I said in my earlier post:
“Brazil offers an international example of how to handle anti-circumvention the right way from the start, instead of creating a draconian rule and then forcing law-abiding users to beg for limited exceptions. Brazil has introduced a balanced approach to anti-circumvention as part of its copyright reform proposal (available here, in Portuguese; see especially section 107). As Canadian copyright law professor Michael Geist explains on his blog, this proposed reform imposes penalties for circumvention of legitimate technological controls on access, just as US law does. But it also specifies that circumvention of such controls is permitted for access to public domain materials and for purposes that fall under Brazil’s ‘fair dealing’ exceptions; an obvious limitation that US law ignores. What is more, the Brazilian proposal would impose penalties equivalent to those for unauthorized circumvention on those who would hinder circumvention for these legitimate purposes.”
Now, of course, we are much closer to the same kind of sensible approach then we were just a few days ago. It is interesting to note that I mentioned in that earlier, never-published post, that the US Trade Representative would be upset at Brazil for not incorporating US-style DMCA rules. But I have just seen this news about how the USTR is backing down about harsh anti-circumvention provisions even in ACTA, the Anti-Counterfeiting Trade Agreement I have talked about before. I believe I may hear the turning of a tide.
These seem like sensible steps in the direction of overcoming some obstacles to fair use in academic settings. Now it remains to be seen how responsible universities are in applying fair use. If that is interpreted to providing an open door to just about any copying under the guise of educational “re-purposing” of content (along lines argued by Jonathan Band), or under a theory like L. Ray Patterson’s that allowed Georgia State to rationalize any amount of copying for coursepacks or e-reserves on the premise that this is “use of the work” instead of “use of the copyright,” then copyright owners have reason to be worried about abuse of these “fair use” privileges.