US Makes New Exemptions To Digital Millennium Copyright Act Provision

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The United States has made new exemptions to a provision in its copyright law that prohibits the circumvention of technological measures to gain access to protected digital works.

The Federal Register notice of the new exemptions is here [pdf].

As part of the triennial review of Section 1201(a)(1)(B) of the US Copyright Act, the Librarian of Congress approved the following “classes of work” to be allowed effective 28 October:

1. Assistive technologies for the blind in electronically-distributed literary works, an exception proposed by the American Council of the Blind and American Foundation for the Blind, and supported by The Samuelson-Glushko Technology Law & Policy Clinic at the University of Colorado School.

“Literary works, distributed electronically, that are protected by technological measures which either prevent the enabling of readaloud functionality or interfere with screen readers or other applications or assistive technologies, (i) when a copy of such a work is lawfully obtained by a blind or other person with a disability…”, read the summary of the final decision from the Library of Congress.

2. Computer programmes for interoperability in wireless telephone handsets which enable the popular activity known as “jail-breaking,” an exception proposed by the Electronic Frontier Foundation (EFF) and supported by, among others, New America Foundation’s Open Technology Initiative, New Media Rights, Mozilla Corporation, and the Free Software Foundation. The final ruling, however, has modified the recommendation of the proponents by excluding tablet computers.

“Computer programs that enable wireless telephone handsets to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the telephone handset,” read the decision.

3. Computer programmes to enable interoperability with another network that has failed to unlock its system upon a request, an exemption proposed by the Consumers Union, Youghiogheny Communications, MetroPCS Communications, and the Competitive Carriers Association.

“Computer programs, in the form of firmware or software, that enable a wireless telephone handset originally acquired from the operator of a wireless telecommunications network or retailer no later than ninety days after the effective date of this exemption to connect to a different wireless telecommunications network, if the operator of the wireless communications network to which the handset is locked has failed to unlock it within a reasonable period of time following a request by the owner of the wireless telephone handset…”, the ruling stated.

4. The use of movie excerpts for commentary, criticism and educational purposes, an exemption proposed by the EFF and the University of Michigan Library and supported by the Organization for Transformative Works.

“[W]here the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary because reasonably available alternatives, such as noncircumventing methods or using screen capture software as provided for in alternative exemptions,” it said.

5. The use of movie excerpts and other audiovisual works for captioning and descriptive audio purposes, an exemption proposed by the Deaf and Hard of Hearing, Inc., Gallaudet University, and the Participatory Culture Foundation

“[W]hen circumvention is accomplished solely to access the playhead and/or related time code information embedded in copies of such works and solely for the purpose of conducting research and development for the purpose of creating players capable of rendering visual representations of the audible portions of such works and/or audible representations or descriptions of the visual portions of such works to enable an individual who is blind, visually impaired, deaf, or hard of hearing, and who has lawfully obtained a copy of such a work, to perceive the work; provided however, that the resulting player does not require circumvention of technological measures to operate,” it read.

As a result, based on Section 1201(a)(1)(D) of the US Copyright Act, the use of copyrighted works falling within the determined classes of works will not be considered as infringing for the next three years.

Other proposals that were considered but did not make it to the list are digital access to literary works in the public domain, computer programmes for interoperability for video game consoles, computer programmes for interoperability for personal computing devices and space shifting for movies and other works on DVDs and other media.

In making the ruling, the Librarian of Congress considered the recommendatons made by the Register of Copyrights, the one tasked to provide the notice of the proceeding and to consult with the Assistant Secretary for Communications and Information at the US Department of Commerce.

The latest ruling was the fifth release of exemptions to the provision since the enactment of the Digital Millenium Copyright Act (DMCA), the law that made the circumvention of technological measures in protected electronic works illegal. The DMCA was enacted for the US to comply with the World Intellectual Property Organization Copyright Treaty and the WIPO Performances and Phonograms Treaty.

Maricel Estavillo may be reached at

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