Stakeholders Enjoy Streamlined Exemption Renewal Process During Seventh DMCA 1201 Rulemaking

On October 26, 2018, the Library of Congress adopted exemptions to the prohibitions in 17 U.S.C. § 1201(a)(1)(A), which prohibits circumvention of technological measures that control access to copyrighted works.  Such exemptions are intended to address situations where the access controls in § 1201(a)(1)(A) impair certain individuals’ ability to make noninfringing uses of copyrighted works.  Specifically, § 1201(a)(1)(C) requires the Library of Congress, upon recommendation of the Office, to examine and adopt exemptions based on the following factors:

1. the availability for use of copyrighted works;
2. the availability for use of works for nonprofit archival, preservation, and educational purposes;
3. the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research;
4. the effect of circumvention of technological measures on the market for or value of copyrighted works; and
5. such other factors as the Librarian considers appropriate.

In response to stakeholder concerns, the Office employed a streamlined exemption renewal process, no longer requiring stakeholders to develop a new factual record for pre-existing exemptions every three years.  Instead, the Office will now consider evidence submitted in prior rulemakings, supported by contemporaneous signed declarations that such evidence remains relevant and valid.  If there is meaningful opposition to a renewal, the Office will notice written comment and public hearing to update the administrative record on the proposed exemptions.