Every three years, NTIA makes recommendations to the Copyright Office in a process in which the Librarian of Congress determines exemptions to the anti-circumvention provision in the Digital Millennium Copyright Act. This provision prohibits the circumvention of technological measures that control access to copyrighted works.
This provision, while designed to deter copyright infringement, can also make it more difficult for Americans to engage in a variety of non-infringing activities, such as repairing machinery, conducting security research, and making media accessible for persons with disabilities.
The Copyright Office runs a rulemaking process to provide the public with an opportunity to propose and comment on possible exemptions. NTIA works diligently to analyze the record generated during this rulemaking and offer the Copyright Office recommendations that support the digital economy and the right to engage in non-infringing activities.
The Eighth Triennial Rulemaking was conducted against the backdrop of the COVID-19 pandemic. Participants noted the barriers faced by educators using videos in virtual classrooms, researchers who require access to works undergoing preservation at libraries, archives, and museums, and everyday Americans who want to repair their own products. In these and other situations, NTIA supported exemptions that maximized relief to Americans.
For example, in response to multiple petitions requesting expansions of current exemptions for repair, NTIA recommended one overarching exemption that would permit owners of lawfully acquired devices or others acting on their behalf to circumvent TPMs to diagnose, maintain, repair, or modify any type of device. NTIA’s recommendation furthers the policies outlined in President Biden’s recent Executive Order on Promoting Competition in the American Economy, which underscores the benefits of competition in the repair market.
NTIA presented its full set of recommendations to the Copyright Office in the form of a consultation letter, which is posted on our website. The Librarian’s Final Rule includes many positive outcomes that will enable Americans to more freely engage in activities that do not infringe on copyright. Although the Librarian and the Copyright Office did not modify language relating to third-party assistance for repair, their decision to broaden the exemptions for repair to encompass a broader range of machines and devices comes one step closer to permitting individuals to exercise the full range of their ownership rights.
Likewise, the new exemption for the preservation of damaged or deteriorating copies of motion pictures recognizes the preeminent role that libraries, archives, and museums play in safeguarding knowledge for current and future generations. Notably, the software preservation exemption now permits remote access to works. This change underscores an understanding that individuals can engage in non-infringing uses from the safety of their home or other locations.
We are also pleased that the Copyright Office allowed people to participate virtually in this rulemaking’s hearings, which accords with recommendations NTIA has made previously. While clearly necessitated by the pandemic to ensure safety, we believe the change to a remote format was successful, and we recommend that it continues to be an option in future rulemakings. NTIA is also grateful to the Copyright Office for inviting NTIA staff to sit on the virtual dais and ask questions to proponents and opponents of the various proposals.
One area that may require further work is resolving issues where statutory authority presents a barrier to supporting non-infringing uses. The Librarian did not act on one request made by more than a dozen organizations and supported by NTIA, which sought a generalized exemption to create accessible versions of copyrighted works for persons with disabilities in a broad range of contexts. The Copyright Office took the view that the statutory language does not give them the authority to support such an exemption.
Overall, NTIA’s recommendations in this year’s consultation letter all point in the same direction: the exemptions granted under the rulemaking process should be as flexible as possible under the law and avoid needless constraints. NTIA stands ready to work in any effort to enable Americans to engage in the full range of non-infringing activities.