CO Focus in Section 1201 Study Likely on Process, Permanent Exemption for Visually Disabled
The Copyright Office's study on the Digital Millennium Copyright Act's Section 1201 is likely to include a strong emphasis on streamlining its triennial review process for considering exemptions to Section 1201’s ban on circumvention of technological protection measures (TPMs) given universal stakeholder support for the concept during a Washington, D.C., roundtable discussion last week (see 1605190057), participants said in interviews. Stakeholders' emphasis Friday on the need for a permanent exemption for making copyrighted works accessible to people with visual disabilities and on issues involving software-embedded products make it likely that the CO will also make those issues a priority in their study, participants told us. The CO is planning to gather additional stakeholder input on Section 1201 during a similar meeting Wednesday in San Francisco.
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One of the Section 1201 exemptions the Library of Congress granted last year following the CO's most recent triennial review allowed circumvention of TPMs on digitally distributed literary works to make them accessible to people with visual impairments or disabilities, but a permanent exemption is needed, several stakeholders said during the CO forum. “It's safe to say that for people who are blind and visually impaired, that circumstance certainly isn't going to change” before the next triennial review, when stakeholders will need to apply to renew the exemption, said National Federation of the Blind Government Affairs Specialist Gabe Cazares. “The language that we have [in the current exemption] is worth revisiting. Accessibility is something that's literally taken a village to try and bring to the mainstream, and the discussion that we began with libraries and publishers is a good start.”
Association of Research Libraries Director-Public Policy Initiatives Krista Cox also strongly backed the need for a permanent exemption for the visually impaired or disabled, noting that a permanent exemption would better satisfy the terms of the World Intellectual Property Organization's 2013 Marrakech Treaty on improving access to published works for the blind and otherwise print disabled. The U.S. hasn't ratified the Marrakech Treaty, which President Barack Obama sent to the Senate in February. Columbia Law School Kernochan Center for Law, Media & the Arts Executive Director June Besek said she also backs creating a permanent exemption for the visually disabled, but believes the language of such an exemption would need to be tweaked. “You don't want to discourage the market from creating accessible versions” of literary works beyond the exemption's parameters, she said.
Stakeholders' consensus on the need for a permanent exemption and the need for streamlining of the Section 1201 exemptions process are “promising first steps” that the CO should consider as it moves forward with its study, said Public Knowledge Policy Counsel Raza Panjwani in an interview. There's a clear consensus for the overarching concept of streamlining the Section 1201 exemptions process, but the CO will need to determine whether it can effectively streamline the process simply by reinterpreting the statute's existing language, Association of American Publishers Vice President-Legal and Governmental Affairs Allan Adler told us. The CO likely wants any streamlining of the Section 1201 process “to be credible not only with stakeholders but also with Congress,” he told us. “They have to be careful to write their streamlining proposal in a way” that passes muster with the House and Senate judiciary committees.
A general process streamlining and CO adoption of a far less formal process for considering renewals of previously granted Section 1201 exemptions is “clearly in the cards,” said University of Virginia Library Director-Information Policy Brandon Butler in an interview. “Really the only question is what the burdens and procedure will be.” The CO is focusing on ways to streamline the Section 1201 exemptions process “on their own” without seeking legislative changes to the statute, he said.
It's “probably too early to determine” how the CO will respond to stakeholders' calls for extending Section 1201 exemptions to include third-party assistance in circumventing TPMs related to automobile software and other software-embedded products, said Copyright Alliance CEO Keith Kupferschmid. Still, the amount of attention those issues received during the roundtable make it likely that the CO will “focus on that more specifically than anything else,” he told us. Issues related to software-embedded products may become a “rare exception” where the CO could recommend that Congress pursue legislation, Butler said. “This is an issue that could get legs because it boggles the mind that copyright law controls car and tractor repair.”