CO San Francisco DMCA Roundtable Confirms Strongest Interest in Exemption Renewals
Copyright Office officials’ strongest focus during a San Francisco roundtable Wednesday centered on how best to streamline the office’s triennial review process for considering renewals of exemptions to Digital Millennium Copyright Act Section 1201’s ban on circumvention of technological protection measures, participants said in interviews. CO officials showed an interest during the meeting on the Section 1201 study in other ways to improve internal office processes related to the section’s rules on anti-circumvention exemptions, but officials appeared to home in on the renewals process, participants told us. CO officials also focused on the Section 1201 exemptions renewal process during a similar meeting last week in Washington, D.C., leading those at that meeting to predict the CO’s study will include recommendations for streamlining the renewal process (see 1605200069).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
CO officials’ questions on the Section 1201 triennial review process -- and particularly on the treatment of exemptions up for renewal -- focused on “specific nuances of the statute,” in contrast to more open-ended questions on other issues related to the section, IP lawyer Cathy Gellis said. “One of the fixed points” the CO appears to be focused on is “cutting the corner” of the triennial review process for previously granted exemptions “so that renewal isn’t so arduous for proponents,” she said. “There was a high level of agreement among all the folks [at the roundtable] that renewal has to be easier,” said Electronic Frontier Foundation Senior Staff Attorney Mitch Stoltz.
“I’d expect to see some reform” of the Section 1201 exemptions renewal process and other fixes to the procedural side of the exemptions process, but “beyond the larger scale agreement that something needs to be done there was more disagreement” on specific solutions, said Authors Alliance Executive Director Michael Wolfe. “Whether reforms on renewal take the form of a renewal presumption or not is open to debate at this point.” Stakeholders’ preferred solutions included allowing automatic exemptions renewals, shifting the burden to opponents to prove “that circumstances had changed,” or slightly streamlining the process by allowing the CO to take evidence and decisions from previous triennial reviews into account, Stoltz said.
There was also significant interest in addressing Section 1201’s permanent exemptions, but since expanding the scope of permanent exemptions would require a legislative update “the odds of anything happening on that are slim,” Wolfe told us. “There did seem to be openness on adding permanent exemptions” for some stakeholders, particularly those who are blind and visually disabled, he said. There was also interest in adding a permanent exemption for device repairs, and a push for consolidating permanent exemptions into a single exemption for “all uses that don’t have a connection to copyright infringement,” Stoltz said.
The CO doesn’t appear to have completely abandoned the possibility of recommending legislative changes to Section 1201, but they appear to be “logically” concentrating on fixes to their internal procedures related to the statute since that will be a far easier “hill to climb,” an entertainment industry lobbyist told us. The CO “has some latitude to reform internally” so it makes sense that would be where their focus will be for now, Wolfe said. The CO probably isn’t “feeling a lot of time pressure to make recommendations” on statutory fixes to Section 1201, given the limited time left on the legislative calendar for the 114th Congress, Stoltz said.