BYU's comment calls for expanded educational exemption
As noted in the October 19, 2020, blog post, BYU has been participating in the United States Copyright Office’s (“USCO”) triennial DMCA rule making.
On December 14, 2020, BYU submitted a comment in support of its petition to expand current educational exemptions to the prohibition of circumvention of certain types of encryption (usually called technological protection measures or “TPMs”) on DVDs and Blu-rays. The current rules restrict the ways educators can use motion pictures in class. For example, an educator may wish to circumvent TPMs to create a digital copy playable from a hard drive or server. While in certain circumstances educators are permitted to show full-length motion pictures in class, the current rules allow for this kind of circumvention only when the educational performance will be limited to “short portions.” This has created many challenges for educators who both wish to use more than “short portions,” and have limited access to DVD and Blu-ray players. BYU’s petition would remove this short portion requirement.
One reason BYU’s proposal exemption is needed is because optical disk technology, including DVDs and Blu-rays, is becoming obsolete and difficult to integrate with existing classroom technology. As classroom access to DVD and Blu-ray players have decreased, the need to be able to show motion pictures from a server or similar medium has become apparent. These issues have become even more salient as the trend toward online learning was accelerated by COVID-19. COVID-19 threw the education world into crisis. Many in-person classes suddenly became either completely online, or some sort of hybrid. After being thrust into the online world, a professor could no longer just put a DVD into a player and hit play. For many, it became nearly impossible to utilize motion pictures in class. Without the ability to break the encryption on the motion pictures for performances in online classes, curriculums had to change and teachers had to adjust their teaching.
BYU’s comment details these issues and explains why the proposed expansion makes both practical and legal sense. It highlights how the needs of educators have permanently changed due to COVID-19 and due to the industry shift away from DVD and Blue-ray media. It also provides an analysis of why the uses covered by the proposed exemption would be noninfringing under copyright law.
Parties opposed to BYU’s proposed exemption will likely submit comments about how this exemption could hurt their interests. BYU will then have an opportunity to write a written response to these oppositions. Finally, in Spring 2021, the USCO will hold a public hearing in which all interested parties may participate. BYU plans to attend this public hearing in support of the proposed exemption.