Issue 61 | March 20, 2003
Copyright Office to Hold Public Hearings on
Anti-Circumvention Exemptions
 The U.S. Copyright Office will be holding public hearings over the next two months in Washington, DC and California for its continuing rulemaking on exemptions to the prohibition against circumvention of technological measures that control access to copyrighted works under 17 U.S.C. �01. The purpose of the hearings is to determine whether there are still particular classes of works for which users are likely to be adversely affected in their ability to make noninfringing uses if they are prohibited from circumventing access control measures. Given the wide public debate over copyright access control, these public hearings are likely to be quite lively.

The Digital Millennium Copyright Act ("DMCA'') was enacted by the U.S. on October 28. 1998 in order to fulfill its treaty obligations under the WIPO Copyright Treaty ("WCT") and the WIPO Performances and Phonograms Treaty ("WPPT"). Section 1201 of the DMCA prohibits two types of activity: (1) the circumvention of technological protection measures that control access; and (2) the trafficking in any technology or part thereof that protects access to a copyrighted work or the rights of the copyright owner.

According to the House Committee Report, the anti-circumvention provisions of �01(a)(1) apply when an unauthorized person gains access to a work by circumventing a technological measure put in place by the copyright owner to control access to the work. To 揷ircumvent a technological measure� means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner. A technological measure 揺ffectively controls access to a work� if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work. However, the anti-circumvention provisions of the DMCA do "not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title.''

The Act also authorizes the Librarian of Congress to make rules that define these adversely affected classes for successive 3-year periods after implementation of the Act. In the first round of this "anti-circumvention protection" rulemaking, the Librarian of Congress announced two classes of works that are currently subject to the exemption:
  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 obsolescence.
These exemptions are now set to expire on October 28, 2003. A Notice of Inquiry on the second round of anti-circumvention rulemaking solicited written comments by December 18, 2002 and reply comments by February 19, 2003. The Copyright Office has now scheduled public hearings for the next round of rulemaking on April 11, April 15, April 30, and May 2, 2003 in Washington, D.C. Hearings are also planned for California on future dates in May.

To discuss this topic further, please contact the author, Bill Heinze, at Thomas, Kayden, Horstemeyer & Risley.

The information contained in this email is provided for informational purposes only and does not represent legal advice. Neither the APLF nor the author intends to create an attorney client relationship by providing this information to you through this message.