On October 12, 1998, Congress passed the Digital Millennium Copyright Act (DMCA). The law became effective in October 2000 and it has been incorporated into the Copyright Act (Title 17 of the U. S. Code). This landmark legislation updated U.S. copyright law to meet the demands of the Digital Age and to conform U.S. law to the requirements of the World Intellectual Property Organization (WIPO) and treaties that the U.S. signed in 1996.
Despite the work of libraries and other partners, dedicated to preserving the traditional balance in copyright law between protecting information and affording access to it, the DMCA tilts strongly in favor of copyright holders. In addition to creating new rules for digital materials, the DMCA mandates several important studies and reports to be conducted by the U.S. Copyright Office and sets the time frames for their completion.
Divided in to five "titles," the DMCA is a complex act that addresses a number of issues that are of concern to libraries. Among its many provision, the Act:
- imposes rules prohibiting the circumvention of technological protection measures
- sets limitations on copyright infringement liability for online service providers (OSPs)
- expands an existing exemption for making copies of computer programs
- provides a significant updating of the rules and procedures regarding archival preservation
- mandates a study of distance education activities in networked environments
- mandates a study of the effects of anti-circumvention protection rules on the "first sale" doctrine
DMCA and Libraries
The following summarizes the key sections of the DMCA that relate to libraries. For more in-depth analysis of the DMCA and its impact on libraries:
Title I: New Prohibitions On Circumvention Of Protection Technologies:
- Prohibits the "circumvention" of any effective "technological protection measure" (e.g., a password or form of encryption) used by a copyright holder to restrict access to its material
- Prohibits the manufacture of any device, or the offering of any service, primarily designed to defeat an effective "technological protection measure"
- Defers the effective date of these prohibitions for two years and 18 months, respectively
- Requires that the Librarian of Congress issue a three-year waiver from the anti-circumvention prohibition when there is evidence that the new law adversely affects or may adversely affect "fair use" and other non-infringing uses of any class of work
- Expressly states that many valuable activities based on the "fair use" doctrine (including reverse engineering, security testing, privacy protection and encryption research) will not constitute illegal "anti-circumvention"
- Makes no change to the "fair use" doctrine or to other information user privileges and rights
Title II: Limitations On Online Service Provider Liability
- Exempts any OSP or carrier of digital information (including libraries) from copyright liability because of the content of a transmission made by a user of the provider's or carrier's system (e.g., the user of a library computer system)
- Establishes a mechanism for a provider to avoid copyright infringement liability due to the storage of infringing information on an OSP's own computer system, or the use of "information location tools" and hyperlinks, if the provider acts "expeditiously to remove or disable access to" infringing material identified in a formal notice by the copyright holder
Title IV: Digital Preservation
This section updates the current preservation provision of the Copyright Act (Sec. 108) to:
- expressly permit authorized institutions to make up to three, digital preservation copies of an eligible copyrighted work
- electronically "loan" those copies to other qualifying institutions
- permit preservation, including by digital means, when the existing format in which the work has been stored becomes obsolete
- The DMCA directed the U.S. Copyright Office and the National Telecommunications and Information Administration (NTIA) to report to Congress on the effects of the "first sale" doctrine of the DMCA and the development of electronic commerce"
- The DMCA directed the U.S. Copyright Office to consult with the appropriate parties and to make recommendations to Congress on how to promote distance education through digital technologies
- The Copyright Office issued its report, Copyright and Digital Distance Education, in May 1999.
- The DMCA delayed the effective date of the anti-circumvention provision (Section 1201) until October 23, 2000 to allow time for the Librarian of Congress to issue rules that would allow certain users to access certain "classes of works" if they needed to circumvent in order to make "non-infringing use" of the works. The Librarian issued the Rule on Oct. 28, 2000.
Five years after passage, the DMCA continues to be a controversial act with far-reaching impact that is supporting the attempts of copyright holders to control access to and downstream use of their content. The doctrine of "fair use" has never more been threatened than it is now. There have been several important court cases based on challenges to provisions in the DMCA and some new legislation is under consideration to redress the balance some believe has been undermined by this law. ALA has contributed "friends of the court" briefs in some of the legal cases (Universal v. Remeirdes, a.k.a. "the DVD case") and vigilantly tracks Congressional activities that bear on the abilities of libraries to provide service to their communities. CLICK ON: The "Copyright Court Cases" section in the left hand navigation tree for a link to this case.
The controversy surrounding the DMCA continues also in attempts to pass legislation that seeks to protect fair use in the digital environment and to extend the control of copyright owners. ALA carefully monitors all of these legislative activities.
- DMCA & Libraries Primer
- Library Preservation: Changes incorporated in the DMCA
- Analysis of the DMCA by Jonathan Band, Morrison & Foerester, LLP
- OITP Intellectual Property Fact Sheet
- Memo: Sec. 108(a)(3) Notice Requirements
- Library Preservation: Changes to DMCA (11/12/98)
- Copyright Act (U.S. C. Title 17) (pdf)
- Digital Millennium Copyright Act Sect 104
DMCA Section 104 Report on "First Sale"
- Digital Millennium Copyright Act (DMCA), Section 108: Photocopying by Libraries and Archives
Section 108 of the copyright law allows libraries and archives to reproduce and distribute one copy of a work under certain circumstances. For example, libraries may photocopy journal articles, book chapters, etc. and send these copies to other libraries through interlibrary loan. This section also allows libraries to make copies for preservation purposes. The DMCA amended Section 108 in three significant ways that are described below.
- Digital Millenium Copyright Act Section 1201
Section 1201 of the 1998 DMCA makes it illegal to circumvent a technological protection measure employed to restrict access to or distribution of copyrighted material. Violators of the anti-circumvention provision are subject to civil and criminal penalties. At the same time, however, the law provides that there can be exemptions from the prohibition for users of "classes of works" who would be "adversely affected by virtue of such prohibition in their ability to make non-infringing uses" of those works.
- Electronic Frontier Foundation
- World Intellectual Property Organization (WIPO)
- DMCA, U.S. Copyright Office Summary, Dec. 1998
- Copyright Act (U.S. C. Title 17) (pdf)