What the Final Rule Means for Institutions of Higher Education
This week, the Librarian of Congress issued a final rule on the 8th Triennial Rulemaking under the Digital Millennium Copyright Act (“DMCA”), which is found in Title 17, section 1201, of the United States Code. We reported on BYU's participation in this DMCA rulemaking process on October 19, 2020 and January 25, 2021.
The DMCA restricts circumvention of technological protection measures ("TPMs") that limit the ability of users to access, decrypt, and copy copyrighted works that exist in technological formats. TPMs can be found in works like video games and movies on DVD or Blu-Ray, but they also exist in the software that runs machines like cars and farm equipment.
Every three years, the statute mandates that the Librarian of Congress undertake a rulemaking proceeding to create exemptions to the DMCA that allow circumvention of TPMs under certain circumstances. During this process, interested parties can submit petitions to keep existing exemptions or to create new ones. After petitions are submitted, there is a time of public comment and a chance for parties who have submitted a petition to defend their proposal. Eventually, the Register of Copyrights prepares a document making recommendations about the exemptions to the Librarian of Congress, and the Librarian publishes a new rule explaining the recognized exemptions that will operate for the next three years.
During this round of rulemaking, BYU submitted petitions to keep existing exemptions in these three areas:
- excerpts for educational purposes by college and university or K-12 faculty and students;
- excerpts for educational purposes by faculty in massive open online courses (“MOOCs”); and
- providing captioning and/or audio description by disability services offices or similar units at educational institutions for students with disabilities.
BYU (in conjunction with Brigham Young University-Idaho) also submitted a petition for the creation of a new exemption that would expand the ability of teachers and professors in colleges and universities or K-12 settings to circumnavigate TPMs on DVDs and Blu-Rays, which would make it easier to use full movies in the classroom for purposes of criticism and comment.
Although the Register of Copyrights' recommendation discussed BYU's petitions at length, including the petition advocating for the new exemption, the Register opted not to recommend the full expansion that BYU proposed. The recommendations stayed closer to the status quo, and this is reflected in the Librarian of Congress's final rule (linked above).