January 23, 2021

U.S. Copyright Office: Final Rule Published in Seventh Triennial Section 1201 Proceeding

From the U.S. Copyright Office:

The Librarian of Congress, upon the recommendation of the Acting Register of Copyrights, is publishing a final rule in the Federal Register adopting exemptions to the statutory prohibition on circumvention of technological measures that control access to copyrighted works.  Publication of the final rule marks the completion of the seventh triennial rulemaking proceeding under 17 U.S.C. 1201.

As in prior section 1201 proceedings, the Copyright Office administered the rulemaking through an extensive public process.  For this seventh triennial proceeding, the Office implemented a new streamlining process enabling members of the public to seek renewal of existing exemptions to which there was no meaningful opposition.  The Acting Register ultimately recommended readoption of all exemptions granted in the 2015 rulemaking.

The Office then invited public input on proposed new or expanded exemptions through three rounds of written comments and seven days of public hearings in Washington, D.C., and Los Angeles.  As required by statute, the Office also consulted with the National Telecommunications and Information Administration of the Department of Commerce.

Based on this record, the Acting Register recommended the granting of several additional exemptions, as discussed in her formal Recommendation to the Librarian.  The Librarian adopted the Acting Register’s Recommendation in full.

From the FAQs:

What classes of works did the Acting Register recommend and the Librarian adopt in the 2018 rulemaking?

Based on the record of evidence in this proceeding, the Acting Register recommended that the Librarian renew, expand, or newly adopt a number of exemptions, as further and more specifically set forth in the Acting Register’s recommendation to the Librarian. The exemptions are:

  • Excerpts of motion pictures (including television programs and videos) for criticism and comment:
    • For educational uses,
      • By college and university or K-12 faculty and students
      • By faculty of massive open online courses (“MOOCs”)
      • By educators and participants in digital and literacy programs offered by libraries, museums and other nonprofits
    • For nonfiction multimedia e-books
    • For uses in documentary films and other films where the use is in parody or for a biographical or historically significant nature
    • For uses in noncommercial videos
  • Motion pictures (including television programs and videos), for the provision of captioning and/or audio description by disability services offices or similar units at educational institutions for students with disabilities
  • Literary works distributed electronically (i.e., e-books), for use with assistive technologies for persons who are blind, visually impaired or have print disabilities
  • Literary works consisting of compilations of data generated by implanted medical devices and corresponding personal monitoring systems
  • Computer programs that operate the following types of devices, to allow connection of a new or used device to an alternative wireless network (“unlocking”):
    • Cellphones
    • Tablets
    • Mobile hotspots
    • Wearable devices (e.g., smartwatches)
  • Computer programs that operate the following types of devices, to allow the device to interoperate with or to remove software applications (“jailbreaking”):
    • Smartphones
    • Tablets and other all-purpose mobile computing devices
    • Smart TVs
    • Voice assistant devices
  • Computer programs that control motorized land vehicles, including farm equipment, for purposes of diagnosis, repair, or modification of the vehicle, including to access diagnostic data
  • Computer programs that control smartphones, home appliances, or home systems, for diagnosis, maintenance, or repair of the device or system
  • Computer programs for purposes of good-faith security research
  • Computer programs other than video games, for the preservation of computer programs and computer program-dependent materials by libraries, archives, and museums
  • Video games for which outside server support has been discontinued, to allow individual play by gamers and preservation of games by libraries, archives, and museums (as well as necessary jailbreaking of console computer code for preservation uses only), and preservation of discontinued video games that never required server support
  • Computer programs that operate 3D printers, to allow use of alternative feedstock

Were there any proposed classes of works that the Acting Register declined to recommend?

Yes. The Acting Register did not recommend, and the Librarian declined to adopt, exemptions with respect to the following proposed categories:

  • Audiovisual works, for broad-based space-shifting and format-shifting (declined due to lack of legal and factual support for exemption)
  • Audiovisual works protected by HDCP/HDMI, for non-infringing uses (declined due to lack of legal and factual support for exemption)
  • Access to avionics data (declined due to lack of factual support that access controls were protecting copyrighted works)

Resources

Direct to All Materials: Section 1201 Exemptions to Prohibition Against Circumvention of Technological Measures Protecting Copyrighted Works

About Gary Price

Gary Price (gprice@mediasourceinc.com) is a librarian, writer, consultant, and frequent conference speaker based in the Washington D.C. metro area. Before launching INFOdocket, Price and Shirl Kennedy were the founders and senior editors at ResourceShelf and DocuTicker for 10 years. From 2006-2009 he was Director of Online Information Services at Ask.com, and is currently a contributing editor at Search Engine Land.

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