Category Archives: Copyright Issues and Legislation

Fair Use Act introduced to rein in the DMCA

Yesterday an important piece of legislation was introduced into the House of Representatives by Congressman Rick Boucher (D-VA) and two co-sponsors (one Democrat and one Republican, for those who keep score).

The Freedom and Innovation Revitalizing US Entrepreneurship Act, in spite of its awkward title intended to create the acronym FAIR USE Act, is an attempt to mitigate the negative impact of DMCA anti-circumvention rules on education, among other activities. Note that it is not a full-scale incorporation of fair use as a DMCA exception, which would create furious opposition, but a more limited attempt to improve the situation for education and for libraries.

Last fall, the Library of Congress approved an educational exception to anti-circumvention for the first time — a narrow rule permitting film and media professors to circumvent security measures in order to make compilations of film clips for classroom use. The new exception lasts for three years, after which it would either “sunset” or have to be renewed. The legislation proposed by Rep. Boucher would make all of the current six exception to the DMCA permanent.

More importantly, this bill would expand the scope of exceptions to the DMCA in ways that would really improve the climate for educational use of technology. The film clip exemption would be expanded to embrace all classroom compilations, not just those in film and media studies classes. Circumvention would also be allowed in order to gain access to public domain works, thus preventing commercial interests from “locking up” content that ought to be available for all to use. Finally, it would allow libraries to circumvent technological protections for purposes of preservation, helping to ensure that digital content will not be lost as technology changes.

This bill has been referred to the House Judiciary Committee, and its full text is not yet available on THOMAS, the Library of Congress database for tracking legislation. So stay tuned for further information and updates. But even at this early stage it is safe to say that passage of this bill would be an important step for instructional technology and library preservation of digital works, and it deserves our strong support.

Copyright legislation left behind by the 109

The 109th Congress adjourned last month without taking action on a number of copyright related bills.

Most significant amongst the un-adopted proposals was the “Orphan Works” act, which was first proposed as a stand-alone bill, then later incorporated with another, much less appealing, copyright amendment. Orphan works legislation is tremendously important for libraries, and is relatively uncontroversial, at least compared to many other copyright proposals. The legislations incorporates a proposal made by the Library of Congress that would amend the “remedies” chapter of the Copyright Act (Chapter 5 of Title 17 in the US Code) so that it would be easier to make use of works that are still in copyright protection but for which a rights holder able to grant permission for the use is unavailable. The potential user would be required to make a “reasonably diligent” search for the owner of the copyright before proceeding. After such a search, if a rights holder turned up later on, the only financial liability the user would have would be to pay a reasonable licensing fee for the use to that rights holder. A non-profit educational institution could avoid even this fee by ceasing to use the material.

Orphan works reform would greatly reduce the “chilling effect” that extended copyright protection has on libraries that want to prepare digital collections and displays. Often the material in question is quite old and no longer subject to any commercial marketing, but libraries are currently subject to significant damages if they use such material and are later confronted by a re-appearing copyright holder .

Two other pieces of legislation that were left unresolved were the “Broadcast Flag” proposal and the “Digital Media Consumers’ Rights Act of 2005.” The former would give the FCC authority to require that all digital TV signals contain code that prevents redistribution. Because its language about educational exceptions is unclear, this proposal seems to threaten legitimate educational exploitation of TV signals. The Consumer Rights Act, on the other hand, would create an amendment to the DMCA to allow consumers to bypass technological copy protection controls as long as that “circumvention” did not result in copyright infringement. This proposal would greatly simplify educational use of digital content.