Flaws of the 1201 Rulemaking Process

It’s Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation!  Today’s topic is “You Bought It, You Own It: Copyright policy should foster the freedom to truly own your stuff: to tinker with it, repair it, reuse it, recycle it, read or watch or launch it on any device, lend it, and then give it away (or re-sell it) when you’re done.”

You bought it, you own it.  This principle applies in the analog world, but in the digital world it is less clear.  In the digital world, technological protection measures (TPM) or “digital locks” may prevent a user from tinkering with a copyrighted work or product he has purchased, even if it is for a completely lawful purpose due to rules in the Copyright Act prohibiting circumvention of these locks.

ARL, as part of the Library Copyright Alliance, is currently involved in the Section 1201 rulemaking process, a procedure where the Copyright Office will determine what classes of works will receive an exemption from the anti-circumvention rules governing TPMs. The process takes place every three years—this is the sixth rulemaking—and individuals or groups can petition to have the previous exemptions renewed or expanded, or can apply for new exemptions.

The rulemaking process is time and resource consuming. Indeed, the 2009 rules were delayed and not announced until July of 2010. The entire process can take a year or more and because the exemptions are renewed de novo without any benefit of a presumption in favor of renewal, it is a burdensome procedure. These exemptions are not made permanent even after multiple renewals, but instead the entire process is repeated again and again.

It is important to note that the exemptions that are requested are for all for non-infringing uses. These are uses that would be permitted, without the time and expense of a rulemaking process, for copyrighted works in analog form which are not accompanied by TPMs. These uses might be for the same purposes as specific limitations and exceptions, such as the making of accessible format works for persons who are print disabled, or for fair use purposes. Despite the fact that these purposes are permitted where TPMs do not exist, in order to achieve these same purposes in the digital world, exemptions must be requested every three years.

This is a fundamental flaw in the language and interpretation of 1201. As LCA’s comments for the record at the House Judiciary Subcommittee hearing on the issue of technological protection measures points out:

The fact that every three years the blind need to expend scarce resources to petition the Librarian of Congress to renew their exemption—or that libraries and educators have to seek renewal of the film clip exemption every three years—demonstrates the fundamental flaw in section 1201. That flaw is that section 1201 could be interpreted to prohibit the circumvention of a technological protection measure even for the purpose of engaging in a lawful use of a work. Congress should adopt the approach proposed by the Unlocking Technology Act of 2013 and its predecessors, attaching liability to circumvention only if it enables infringement.

LCA’s petitions for the 2015 rulemaking process highlight some absurdities. One of its petitions focuses on making literary works distributed electronically accessible for persons with print disabilities. Although this exemption has been continually renewed since 2003, the exemption must again be petitioned for and new evidence must be submitted. The second LCA petition requests an exemption for motion picture excerpts, including expanding the current exemption for all storage media, including Blu-Ray discs. The 2012 exemption applied only to a specific type of technological protection measure, known as Content Scrambling System, which is used with DVDs; because Blu-Ray discs used a different form of a TPM, this 2012 exemption did not apply.

In addition to the fact that the process is extremely repetitive, resource consuming and unnecessary, the rules have grown increasingly complex and long. In the 2003 rulemaking, the Librarian of Congress exempted four classes of works; these rules were laid out in 200 words. By contrast, the 2012 rules included eight classes of works—though five of these classes all relate to motion pictures, particularly excerpts or screen captures—and these exemptions amounted to nearly 1200 words. Consider, for example, the specific exemption for literary works distributed electronically. The word count more than doubled from its 2003 language to its 2012 language, becoming more complicated and including a cross-reference to Section 121 of the Copyright Act.

2003 exemption:

Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling of the ebook’s read-aloud function and that prevent the enabling of screen readers to render the text into a specialized format.

2012 exemption:

(1) Literary works, distributed electronically, that are protected by technological measures which either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies in the following instances:

(i) When a copy of such a work is lawfully obtained by a blind or other person with a disability, as such a person is defined in 17 U.S.C. 121; provided, however, the rights owner is remunerated, as appropriate, for the price of the mainstream copy of the work as made available to the general public through customary channels; or

(ii) When such work is a nondramatic literary work, lawfully obtained and used by an authorized entity pursuant to 17 U.S.C. 121.

The result of the increasingly complicated and specific language across all the exemptions (in fact, the language for the benefit of the print disabled above is relatively simple in comparison to other 2012 exemptions) is that these exemptions become virtually unusable for many users.

The process should be re-thought to ensure that 1) resources are not unnecessarily wasted through a repetitive, time-consuming process and 2) the beneficiaries of these exemptions can clearly understand the rules and make use of the exemptions.

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