t seems the Copyright Office has one more gift to give before the end of the holiday season. Tomorrow, the Federal Register will issue a Notice of Inquiry to assess the operation of section 1201 of the Digital Millennium Copyright Act,17 U.S.C. § 1201. That provision prohibits the circumvention of technological measures designed to prevent unauthorized access to copyrighted works, and forbids people from trafficking in technologies designed to crack those measures. Section 1201 also contains a triennial rulemaking proceeding that permitted the Librarian of Congress to issue exemptions (on the Register’s recommendation) for certain classes of works if the proponents of that exemption could make an evidentiary showing that the presence of the circumvention ban was interfering with noninfringing uses.
That rulemaking process has become unwieldy. During the last proceeding, the Copyright Office received over 40,000 written submissions, and issued a containing over 2,000 footnotes. In addition, the Office received comments from industries that previously had no stake in the debates over copyright policy, such as the makers of health care devices. The final result of that proceeding was containing twenty-two exemptions, some having nothing to do with what most people would consider the core copyright industries, and others requiring delay due to their potential effect on product health and safety. Many other exemptions, such as the one involving works for the visually impaired, were carried over from past rulemakings.
As a result of its experience in the past rulemakings, the Copyright Office seeks input from the public on a number of issues, including:
- What does section 1201 do, and is it effective in doing it?
- How should section 1201 accommodate interests outside of core copyright concerns (e.g., product interoperability)?
- Should exemptions issued in a prior rulemaking be presumptively carried over, or should the burden be otherwise altered?
- What role do the anti-copying provisions of sections 1201(a)(2) (anti-trafficking) and 1201(b)(anti-copying measures) serve in deterring infringement and are they effective?
- Should Congress expand the scope of the rulemaking to include exemptions to the anti-trafficking provision? Should the exemptions allow third-party assistance?
- Does the list of statutory exemptions for reverse engineering, encryption research, security testing reflect the current state of those fields? How if at all should they be amended?
- Should the statutory amendments be changed to better accommodate libraries, archives and educational institutions?
- Should Congress otherwise expand the list of exemptions?
- How would such amendments affect U.S. international obligations?
The Copyright Office’s activity in this area should be viewed in the context of Congress’s ongoing review of the Copyright Act. The initial round of comments is due on February 25, 2016, and replies are due on March 25, 2016.