Medical Library Association | Public Policy : Digital Millennium Copyright Act (DMCA)

Primer for the Digital Millennium

Part I:
Digital Copyright Timeline, Key Library Issues and Legislative Overview

I. Introduction: The Digital Copyright Timeline – Where We’ve 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 105^th 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 106^th Congress will be issues leftover from the DMCA.

To appreciate what the DMCA means, let’s 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.

DMCA Timeline

1993

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.

1994

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 educational settings.

1995

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 information; and

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 copyright.

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.

1996

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); and

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.

1997

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 21^st 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.

1998

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 Committee’s 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 DMCA’s 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 105^th Session. Database and Distance Education are high on the agenda for the 106^th Session of Congress.

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 party’s 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 the following:

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 106^th 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.