January 2001
On October 27, 2000, the Librarian of Congress issued rules on anti-circumvention[1] as required in the Digital Millennium Copyright Act. Much to the disappointment of the library community, the rules do not provide the protection for fair use in the digital environment that libraries and educational institutions advocated.
Section 1201(a)(1)A) of the DMCA prohibits the circumvention of controls that copyright owners use to prevent access or copying of their works. Even in this legislation, however, Congress recognized that a blanket prohibition on circumvention might interfere with the fair use of copyrighted works on which a publisher had used a technological control such as scrambling, encryption or requiring passwords. So, in 1998, all that was prohibited was the manufacture, importation or trafficking in anti-circumvention devices that might be used to gain access to works. According to the statutes, these devices might include “products, services, device, component or part thereof, if such device has only limited use except for circumvention.” The section prohibits both conduct of circumventing and trafficking in products or services that circumvent. Conduct, however, would not be punishable under the Act pending this rulemaking.
In section 1201(1)(C) the statute calls for the study two years after the effective date of the DMCA, October 28, 1998. The Librarian of Congress was directed to consult with the Register of Copyrights and the Assistant Secretary for Communications and Information of the Department of Commerce in order to determine “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 …. in their ability to make noninfringing uses …. of a particular class of copyrighted work.” Considerations were to include the availability of copyrighted works for use, the availability for use for nonprofit archival, preservation and educational purposes, and the impact that circumvention technologies will have on fair use and on the market value of such works.
Librarians and educators had high hopes that this rule-making procedure would result in exemptions for libraries and educational institutions and their users, at least for some types of works. The Register held two hearings, one in D.C. and one in Palo Alto, California, in the spring of 2000 where representatives of library and educational associations testified along with representatives of publisher and producer organizations. Because of the short time period between the enactment of the DMCA and the hearings, and because so few publishers and producers had actually implemented technological controls other than passwords, librarians and others were unable to present much evidence of current harm. Testimony about the likelihood of harm seems to have been rejected.
The announced rule details only two classes of works that are exempted from the anti-circumvention prohibition. (1) “Compilations consisting of lists of websites blocked by filtering software applications, and (2) Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness.” While there is nothing wrong per se with exempting these classes, the complaint is that the exemptions are so narrow as to be almost meaningless. The first exemption applies only to users who want to evaluate websites for purposes of criticizing them, and access controls have an adverse affect on the ability to do this. The purpose of the second exemption is to permit users, including libraries, to have access to the works for which they have paid but for which some malfunction interferes with this use.
Libraries sought a much broader exemption because of the recognition that technological controls can and will not only control access to works but the use of those works. This can destroy the first sale doctrine as well as fair use. Libraries were also concerned about the preservation of digital information and technological controls that prevent libraries from fulfilling their role as the repository and preserver of information. The higher education community supported this view but also suggested in the alternative that two other types of works be exempted: fair use works and those with thin copyrights. Fair use works were defined as those such as scientific and social databases, textbooks, scholarly journals, academic monographs and treatises, law reports and educational audiovisual works. Such works could be tied to the user who is likely to make fair use of them. Thin copyright works are works such as scholarly journals, databases, maps and newspapers. These works are valuable because of the information they contain, and “information” is not protected under the copyright law.
The narrowness of the resulting rule is of great concern to the library community while copyright holders have stated that they do not believe even these two exemptions are needed. Library associations expressed the fear that pay-for-use now will become the norm with practically no controls, and this eliminates fair use and the other exemptions to copyright which have long protected the public and served the public interest. The Librarian of Congress has recognized that this “places considerable burdens on the scholarly, academic and library communities.” He has therefore called for a review of the time frame for rule making as well as of the appropriate criteria for assessing the harm that might be caused to scholarship and creativity by the anti-circumvention provision.
Others, such as the Digital Future Coalition,[2] believe that the rule fails to satisfy the Congressional concern that traditional fair use in the digital environment be preserved, a view supported in this rule-making proceeding by the Assistant Secretary for Communications and Information in the Department of Commerce. Congressman Rick Boucher issued a statement on November 2, 2000, stating that there was little doubt that the 107th Congress now will recognize that the balance has tipped too far in the direction of copyright holders. He believes that because of the importance of fair use to society Congress will consider re-calibrating the DMCA to balance more evenly the rights of copyright holders with the legitimate interest of information consumers.