The mainstream media’s coverage of the announcement this week by the Librarian of Congress on new exemptions to the Digital Millennium Copyright Act (DMCA) (see the press release here), focused on the impact on jail breaking smart phones, but scant attention was paid to the exemption on circumvention of copying of DVDs. The latter ruling has broad implications for foreign languages instructors, and the new rules are different for universities and K-12 educators.
Many of us are familiar with US Copyright law and the limited freedom we enjoy under the fair use provisions of that law (a good discussion of fair use can be found here). What is less well known were restrictions placed on copying digital media, including computer software, by the DMCA. In effect, the DMCA prohibited any copying of digital media (e.g., DVDs) that were in some way copy-protected, even if the copying would fall within fair use provisions of US Copyright law. One provision of the DMCA (passed unanimously by Congress in 1998 while universities and the education community slept) was to allow the Librarian of Congress, once every three years, to grant exemptions to the law in certain specific cases. In 1996, for example, the LOC granted an exemption to film studies faculty and departments, allowing them to make clips from DVDs.
At the next round of hearings in 1999, the American Library Association launched an initiative to significantly extend the exemption given to film studies faculty to include all academic departments at the K-12 and university levels, and to students working on class projects. The LOC conducted hearings at Stanford University and in Washington, D.C. The ALA’s West Coast contingent was led by Gary Handman of the Media Resources Center at UC Berkeley, and included testimony by Abigail De Kosnik of UC Berkeley’s Center for New Media and by yours truly.
Hearings and Ruling
At the hearing questioning by LOC staff and testimony by a representative from the recording and film industry led us to believe that the LOC would likely extend the exemption to other university disciplines, but that the restraints would be so cumbersome as to make the creation of derivatives an impossible task. Thus, for example, the LOC seemed to be taking the tack that screen capture software or creating clips by projecting the image onto a screen and filming that image would be a possible solution, although we argued that the resulting quality would be so inferior as to make the derivatives useless in the classroom.
So, this week we were pleasantly surprised, but also perplexed and disappointed, when the LOC issued its ruling extending the exemption to all university disciplines. Surprised, because the LOC did not take the route of proscribing how the copying could be done; perplexed and disappointed, because the exemption was granted only to university faculty, but not to educators in K-12 contexts and not to university students (except those in film studies).
What is important for academia, however, is that this exemption restores the fair use provision of US Copyright law to the exploitation of DVDs. DMCA had effectively made it impossible for university faculty to use any clips derived from DVDs legally, unless one could argue that one was affiliated with a film studies department. Many faculty were either ignorant of or ignored that law, but the LOC ruling now makes possible the use of film clips in an academic setting, under the constraints of the fair use doctrine, at least until the next round of hearings in 2012. By 2012 we might be living in a different world, where DVD’s have gone the route of VHS and everyone downloads, for a price, whatever film they want to watch. It remains to be seen whether DVD collections and the creation of clips will still be a viable option at that time.