While making it illegal to circumvent a technological protection measure employed to restrict access to or distribution of copyrighted material, Section 1201 provides that there can be exemptions for users of classes of works [a “class” generally constitutes some sub-set of Section 102 subject matter], if "such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses" of such works.
Rulemaking procedure
As made clear by Section 1201(a)(1)(C), while focusing on whether the implementation of technological measures has an adverse impact on the ability of users to make lawful uses of protected materials, the rulemaking proceeding shall take account of the following factors:
- the availability for use of copyrighted works;
- the availability for use of works for nonprofit archival, preservation, and educational purposes;
- 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;
- the effect of circumvention of technological measures on the market for or value of copyrighted works; and
- such other factors as the Librarian considers appropriate.
According to Section 1201(a)(1)(D), the resulting regulations announce “any class of copyrighted works for which the Librarian has determined ... that noninfringing uses by persons who are users of a copyrighted work are, or are likely to be, adversely affected by the prohibition contained in subparagraph (A), which will not apply for the ensuing 3-year period."
As a consequence of such temporal limitation, in each rulemaking proceeding the Register and the Librarian review the proposed classes de novo, as previous designation of a class creates no presumption that this will be confirmed. Moreover, it is not sufficient that use could be non-infringing, as the Register does not apply a “rule of doubt” when it is unclear whether a proposed use is likely to be fair or otherwise non-infringing.
As a consequence of such temporal limitation, in each rulemaking proceeding the Register and the Librarian review the proposed classes de novo, as previous designation of a class creates no presumption that this will be confirmed. Moreover, it is not sufficient that use could be non-infringing, as the Register does not apply a “rule of doubt” when it is unclear whether a proposed use is likely to be fair or otherwise non-infringing.
The designated classes
Upon recommendation of the Register of Copyrights, the Librarian has determined that the following classes of works shall be exempt from the prohibition against circumvention of technological measures:
Upon recommendation of the Register of Copyrights, the Librarian has determined that the following classes of works shall be exempt from the prohibition against circumvention of technological measures:
A. Literary works, distributed electronically [also known as e-books, explains Merpel] that are protected by technological measures which either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies for blind or visually impaired persons;
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| Merpel spends rainy days downloading the latest apps |
Contrary to the request of the proponents (such as the Electronic Frontier Foundation), tablets, e-readers and similar portable devices have not been included. The reason is that the Register found significant merit to the opposition's concerns that (too) many devices could have been considered tablets, notwithstanding the significant distinctions among them in terms of the way they operate, their intended purposes, and the nature of the applications they can accommodate. This said, Merpel thinks that this class will have to be expanded soon, as the so called app economy is growing at an impressive rate: just in 2011 in the US the mobile app revenue was almost $10 billion, but by 2016 it’s expected to be more than $46 billion, as is explained here]
C. Lawfully acquired computer programs that enable a wireless telephone handset originally acquired from the operator of a wireless telecommunications network to connect to a different wireless telecommunications network [so called unlocking], if the operator of the wireless communications network to which the handset is locked has failed to unlock it within a reasonable period of time following a request by the telephone owner [the exception applies only to mobile phones acquired prior to the effective date of the exemption or within 90 days thereafter].
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| Criticism in progress |
E. Lawfully obtained protected motion pictures and other audiovisual works on DVDs when circumvention is accomplished solely to access the playhead and/or related time code information solely for the purpose of conducting research and development for the purpose of creating players capable of rendering visual representations of the audible portions for the benefit of blind and visually impaired persons.
Classes considered but not recommended
The report also includes a section dedicated to classes of works which, although considered, have been left outwith Section 1201(a)(1)(B) exemption.
Interestingly enough, one of these classes concerns literary works in the public domain. The Register concluded that an exemption to access public domain works would be beyond the scope of the rulemaking proceeding.
Other classes considered but not recommended for an exemption related to video game consoles and personal computing devices for the sake of software interoperability, and films and other works on DVDs and other media for the sake of space shifting.
The report also includes a section dedicated to classes of works which, although considered, have been left outwith Section 1201(a)(1)(B) exemption.
Interestingly enough, one of these classes concerns literary works in the public domain. The Register concluded that an exemption to access public domain works would be beyond the scope of the rulemaking proceeding.
Other classes considered but not recommended for an exemption related to video game consoles and personal computing devices for the sake of software interoperability, and films and other works on DVDs and other media for the sake of space shifting.