Primer for the Digital Millennium
Digital Copyright Timeline, Key Library Issues and Legislative Overview
I. Introduction: The Digital Copyright Timeline
Where Weve Come From
The Digital Millennium Copyright Act ("DMCA"), which
is the centerpiece of the legislative strategy for the Clinton Administration
and Congressional leaders responsible for copyright bills, was passed
in the closing days of the 105th Congress. It is a very
complex Act, which generated controversy and left unfinished business
in its wake. As a result, high on the list of "must-dos" for the
106th Congress will be issues leftover from the DMCA.
To appreciate what the DMCA means, lets first
take a few steps back and remind ourselves how we arrived to our
current situation. Placed in context, the DMCA is best understood
as part of a larger picture dealing with copyright and digital technology.
When the Clinton Administration took office, one of the top priorities
was to bring a new order to what was developing as the National
Information Infrastructure ("NII"). It established a task force
within governmental agencies and prepared an agenda for action.
The goal was to define U.S. priorities and action points for domestic
an international legal reform. The Internet in those days was clearly
growing into an international communications medium, but its full
potential remained open to speculation.
In 1994, the NII Task Force, spearheaded by the Department
of Commerce ("DOC"), published a Green Paper, calling for
public input on the need for expanded regulation of the digital
environment. In fulfilling its responsibilities, the DOC, led by
the Commissioner of the U.S. Patent and Trademark Office, held public
hearings and initiated a Conference on Fair Use ("CONFU"), designed
ultimately to develop guidelines for use of copyright works in numerous
Following many hours of hearings and receipt of reams of comments, the
NII Task Force released The Report of the Working Group on Intellectual
Property Rights. The Report dubbed the White Paper, stressed
that U.S. copyright law was substantially fit for handling most important
issues in the digital context; however, like a well-worn suit, some tailoring
was needed to keep it fitting just right. The core recommendations included
(a) expanding the exclusive rights of copyright
owners to include the right of transmission;
(b) updating the library exemption in section 108
to permit making three copies of a work and allowing digital as
well as facsimile copies;
(c) creating new prohibitions on devices or services
designed to circumvent mechanisms which protect the rights of
copyright owners and which affect newly recognized copyright management
d) establishing a new limitation on reproduction
to help the visually impaired.
While the WhitePaper received mixed reviews,
Congressional Committees held hearings on the legislative proposals.
Concurrently, an international diplomatic copyright conference was
planned by the World Intellectual Property Organization ("WIPO")
1996. Some Congressmen strenuously urged the DOC not to get ahead
of Congress, that is, Congress wanted to set U.S. Copyright policy,
not follow the DOC lead.
At the same time the digital agenda was being discussed,
copyright owners pressed Congress for another legal reform
extension of the term of protection from life of the author plus
50 (75 years in the case of work for hire) to life plus 70 (95 years
for work for hire). The impetus for this reform stemmed from the
goal of the copyright owners to secure protection in the U.S. equal
to that provided by European countries. Noting that U.S. authors
could not benefit in Europe from the full protection of European
law unless U.S. law protected works for the same duration, term
extension advocates urged expanding the term in U.S. law. The rationale
of looking to European law enhanced the impetus toward copyright
reform based on the notion of harmonization, i.e., bringing
the copyright laws of all nations into general equilibrium. This
notion supported the principle that the Berne Copyright Treaty,
the leading international agreement covering copyrights, needed
to be updated to meet the challenges that new technology posed to
Regarding term extension, the library community raised
the specter of significant loss of rights to use works in the public
domain. Once the term of copyright protection expires, users are
free to take and republish or distribute works without prior approval
of the author. The longer the term of protection, the longer clearance
to use is required. The Register of Copyrights was delegated by
the Congressional committees to supervise discussions aimed at allowing
libraries a limited right to use works during the last twenty years
of any extended term.
There was much public discussion about the copyright issues raised in
the White Paper. Continued hearings in Congress and by CONFU focused
on how U.S. copyright law should be reformed. At the conclusion of the
year, a Diplomatic Conference was held in Geneva under the auspices of
the WIPO to consider three treaties:
(a) one proposed amending Berne along the lines set
forth in the NII Report in order to develop an international consensus
on treatment of copyright in a digital world;
(b) another urged adding additional protections
for performers and producers of phonograms (sound recordings);
(c) a third, set forth standards for protection
of databases as developed in U.S. and European legislative initiatives.
The Diplomatic Conference was heavily lobbied by commercial
and public interest parties and resulted in the adoption of amendments
to Berne (WIPO Treaty) and the Phonograms Treaty, but in the tabling
of the Sui Generis Database Treaty.
Following the return of diplomats, Congress began in earnest to
consider core issues, including proposals to prohibit circumvention
of technological protection measures, to protect a copyright management
information system and to modify copyright law to comply with the
adopted WIPO and Phonograms Treaties. Also, high on the list of
key issues was creation of a limitation on liability for "online
service providers," those entities that link users to the Internet.
A serious legal question had developed as to their liability for
infringements that occurred online. Although the OSPs did not place
the content online, they greatly facilitated widespread public access.
Their exposure to copyright liability had emerged as one of the
pivotal brakes on developing the Internet to the next level as the
communication medium of the 21st century. Under the direction
of the House Judiciary Subcommittee on Copyrights, representatives
of content owners, service providers, libraries and education met
over a period of months to hammer out the elements of a legal structure
for OSPs. Also, the legislative agenda contained an update of the
library exemptions and a focused database initiative.
By 1998, it became apparent that passing the WIPO Treaty and addressing
database issues were at the top of the legislative agenda for the Administration
and the Congress. Sen. Hatch, chairman of the Senate Judiciary Committee,
renamed the WIPO Treaty Implementing Legislation, the Digital Millennium
Copyright Act, thereby stressing its importance for U.S. Copyright Policy.
The bill became the focal point of all legislative debate on copyright
issues, and most particularly, OSP limitation on liability, anti-circumvention,
database, library exemptions and term extension. Throughout the session,
negotiations were on-going to resolve disputes involving each of these
issues. Database protection emerged as a pivotal issue for key copyright
interests after DMCA passed the House of Representatives. Even though
the Senate Judiciary Committee had not held any hearings on database,
publishers and the Chairmen of the House Copyright Subcommittee and House
Judiciary Committee insisted that a database bill be included in final
settlement of the DMCA.
Updating laws relating to distance education also
developed as an important part of the educational agenda. Equally
important, politics played a role in the final developments of the
DMCA. Although copyright jurisdiction belongs to the House and Senate
Judiciary Committees, the impact of the legislation on commerce
resulted in joint referral of the DMCA to the House Commerce Committee.
This second House deliberative body played a crucial role in formulating
the final policy of the DMCA. In particular, the Commerce Committees
staff managed direct negotiations between content owners and libraries
and educational interests over the relationship between fair use
(as well as other statutory copyright limitations) and the anti-circumvention
rules. This part of the DMCAs ultimate structure was laid
out in these negotiations.
The other important development throughout most of
the period of legislative consideration of the WIPO bills was the
emergence of coalitions of disparate groups with joint purposes.
For the library community, participation in the Digital Future Coalition
brought it in regular planning with device manufacturers (who fought
limits on equipment) and certain publishers (who depended on access
to factual information to develop their own works). This coalition
helped devise a compromise strategy on anti-circumvention and develop
an alternative to the House-passed database bill. Following weeks
of Senate-supervised negotiations, the Database Title was dropped
from the final legislation.
Also in 1998, the CONFU process ended without the
emergence of formal adoption of fair use guidelines. As the details
implementing fair use were assessed, no consensus on final parameters
was devised. Moreover, the parties in negotiations, content owners
on the one hand, and libraries, educators and other users on the
other, failed to reach agreement on the ultimate purpose of the
guidelines; that is, whether they were "safe harbor" standards or
the limits of fair use.
In all it was a tumultuous legislative period. The DMCA and term extension
passed in the closing days of the 105th Session. Database and
Distance Education are high on the agenda for the 106th Session
II. Key Issues for the Library Community in
the Digital Millennium Copyright Act ("DMCA")
The DMCA raised numerous
legal and practical issues for the library community. The legislative
debate and negotiations focused on the following:
A. Fair Use in the Digital Millennium/Anti-circumvention and Database
The core fair use issue was how to preserve the principle
of fair use as Congress proposed to create new rights of owners
of works. First, fair use became the central debating point with
regard to achieving access to works protected by technological measures.
If access could be technologically restricted by the copyright owner,
how could the public exercise fair use with regard to those works?
Second, fair use was at the heart of the question
of dealing with the bill on database protection. In order to escape
the suggestion that database protection was a copyright right, because
the U.S. Supreme Court had held that constitutional copyright principles
prohibited ownership of facts or works of the federal government,
the drafters moved away from copyright notions. They suggested that
the new law should protect "investment," not reward "creativity."
In this new regime, the copyright doctrine of fair use does not
exist. Unless it was created legislatively, users of facts could
be subject to fewer protections than users of copyrighted works.
B. Maintenance of the Public Domain
For libraries, the ability to use works in the public domain is
a vitally important principle. The Copyright Term Extension Bill and the
Database Bill both threatened to remove works that resided in the public
domain for many years. In the case of term extension, an automatic twenty-year
extension would mean that works freely available seventy-five years after
original publication could be subject to royalty demands and use restrictions
for two more decades. In the case of databases, collections of factual
information that were freely available for copying, might be tied up for
fifteen years, or more. These two proposals augured the most significant
shrinkage of the public domain in recent years. The plan of the library
community was to carve out from the twenty-year term those works not exploited
by their owners and leave them available for library uses. In the case
of database, the key fix was to restrict protection to cases of commercial
exploitation; any non-commercial use would be exempted.
C. Library Preservation Update
With a boost from the White Paper, an update of Section
108 requirements had impetus. Under the 1976 Act, libraries were
prohibited from employing digital technology to preserve works and
were restricted to making only one copy of a work, even though practice
required three copies an archival copy, a master, a use copy
from which working copies could be made. Achieving a modernization
of this section became an important goal of the library community.
D. Online Service Provider Limitation on Liability
Along with commercial service providers, libraries recognized
the urgency of adopting statutory limitation on copyright infringement.
With the Internet the most significant educational tool to develop
in decades, if Internet providers (including libraries and educational
institutions) were liable for copyright infringement merely because
they facilitated the transmission of digital data ("zeroes and ones")
that translated into another partys copyrighted work, all
Internet communications could be stifled. Even though there is no
practical way for OSPs to determine content on the Net, courts were
finding OSPs liable for copyright infringement if their activities
contributed to the violation. A balance had to be struck if the
information was to pass safely between users and websites.
E. Distance Learning
In various negotiations, the library and educational communities
took the position that if Congress were to provide new protections for
copyright owners in the digital world, then there could be no escaping
the need to update policies on distance learning and the use of digital
networks. With educational markets at the center of many copyright owners
businesses, the need to reconcile reasonable expansion of educational
uses while preserving the business of selling works to the educational
market was at the center of the discussion.
III. Digital Millennium Copyright Act: Overview
The DMCA contains many new statutory elements, including
A. New Rules Prohibit Circumvention of Technological Protection Measures (TPMs)
The scheme has the three key elements:
1. On a periodic basis, a regulatory process supervised
by the Librarian of Congress will determine whether access to
particular classes of works protected by anti-circumvention technology
should nevertheless be allowed to facilitate fair use and other
copyright law limitations.
2. A prohibition on the manufacture,
importation, sale or offering for sale of any technology, product,
service device, component or part that (a) is primarily designed
to circumvent technology of a copyright owner that limits access
to a work, (b) has only limited commercially significant purpose
other than to circumvent, or (c) is marketed for use in circumvention.
3. Several specific statutory limitations were
created to enable certain practices by those involved in libraries,
law enforcement, reverse engineering and encryption research.
B. Copyright Management Information
The DMCA prohibits alteration of information imbedded in digital
works by copyright owners. The information may include details as
to ownership, authorship and licensing.
C. Online Service Provider Limitation on Liability
One of the most complex and important aspects of DMCA is the
limitation for OSPs. The new rules grant OSPs that transmit and
store, as well as provide tools (hyperlinks and software) to facilitate
online access, an exclusion from monetary liability for copyright
infringement, provided that their online system complies with OSP
procedures, they have no actual knowledge of copyright infringements
and they cooperate with processes to disable access and limit the
harm to the copyright owner.
D. Distance Education
The Copyright Office is commissioned to study the issues associated
with distance education utilizing digital networks and report back to
Congress by April 28, 1999. Views of copyright owners, educators and libraries
will be solicited on seven key topics.
E. Section 108 Update
The DMCA provides the most significant updating of library and
archival preservation rules since procedures to cope with the photocopy
machines were established in 1976. The changes permit preservation
and storage in a digital format and describe a mechanism for handling
preservation of works originating in outmoded formats.
A special note about Database Protection
is appropriate. The title of the DMCA that would have created a
new type of protection for databases was deleted from the final
version of the bill. The controversial section was removed on condition
that it would receive high legislative priority in 1999. A database
bill based on the 1999 House-passed version has already been introduced
in the 106th Congress.
IV. The Sonny Bono Copyright Term Extension Act: Overview
In essence, the term
extension act preserves copyright protection for all covered works
for an additional twenty years. The libraries won a hard-fought,
limited exception to use works in the last 20 years of protection.
The proviso permits use for purposes of preservation, scholarship
or research if the work is not subject to normal commercial exploitation
or is not available at a reasonable price. Passage of copyright
term extension, which was a popular bill, should have occurred several
years ago; however, passage was held up by disputes involving music
licensing in connection with religious broadcasts and public performances
in restaurants and bars. In order to achieve final action on the
extended term, the conflicting parties agreed to House-passed amendments.