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Digital Economy Act 2010 - Wikipedia digital millennium copyright act us code

Digital Economy Act 2010 From Wikipedia, the free encyclopedia Jump to: navigation , search This article is about the 2010 act. For the 2017 act, see Digital Economy Act 2017 . Digital Economy Act 2010 Parliament of the United Kingdom Long title An Act to make provision about the functions of the Office of Communications; to make provision about the online infringement of copyright and about penalties for infringement of copyright and performers’ rights; to make provision about internet domain registries; to make provision about the functions of the Channel Four Television Corporation; to make provision about the regulation of television and radio services; to make provision about the regulation of the use of the electromagnetic spectrum; to amend the Video Recordings Act 1984; to make provision about public lending right in relation to electronic publications; and for connected purposes. Citation 2010 c 24 Introduced by Lord Mandelson Territorial extent England and Wales, Scotland and Northern Ireland Dates Royal assent 8 April 2010  ( 2010-04-08 ) Commencement 8 April 2010  ( 2010-04-08 ) (part) 8 June 2010  ( 2010-06-08 ) (part) pending (part) Repealed s.17 and 18 repealed 2011 Other legislation Relates to Communications Act 2003 , Copyright, Designs and Patents Act 1988 , Video Recordings Act 1984 Status: Current legislation [s.3 through 16 ("The Code") have never come into force History of passage through Parliament] Text of statute as originally enacted Text of the Digital Economy Act 2010 as in force today (including any amendments) within the United Kingdom, from

The Digital Economy Act 2010 (c. 24) is an Act of the Parliament of the United Kingdom . The act addresses media policy issues related to digital media, including copyright infringement, Internet domain names, Channel 4 media content, local radio and video games. Introduced to Parliament by Lord Mandelson on 20 November 2009, it received Royal Assent on 8 April 2010. It came into force two months later, with some exceptions: several sections - 5, 6, 7, 15, 16(1)and 30 to 32 - came into force immediately, whilst others required a Statutory Instrument before they would come into force. [1] However some provisions have never come into force since the required statutory instruments were never passed by Parliament and considered to be "shelved" by 2014, [2] and other sections were repealed .

Contents 1 Provisions 1.1 Online infringement of copyright provisions (sections 3-16) 1.1.1 Code not passed into law 1.1.2 Outline of Code provisions 1.2 Blocking Internet locations (sections 17-18) 1.3 Other provisions 2 Legislative process 2.1 Wash-up 3 Initial controversies arising from the proposed Act 3.1 Controversial aspects 3.2 Opposition to the bill 3.3 Industry lobbying 3.4 Support for the bill 3.5 Ofcom review of sections 17 and 18 3.6 Cost of implementation 4 Post-legislative legal inquiries into the Act 4.1 Judicial review 4.2 Select committee inquiry 5 Digital Economy Act 2017 6 Academic analysis and reference sources 7 See also 7.1 Related international law 8 External links 9 References

Provisions [ edit ] Online infringement of copyright provisions (sections 3-16) [ edit ]

Sections 3 to 16 contained copyright infringement provisions, which were controversial. [3] These provisions established a "code" to be created which would define a system of procedures covering notifications to Internet Service Providers to notify their customers when an allegation was made of downloading copyright-infringing content online, subscriber appeals, conditions under which subscribers could be identified to third parties, and conditions for disconnecting persistent infringers. The objective was to provide evidence that copyright holders could use in court action against subscribers who repeatedly infringed. A second element of the provisions comprises the ‘technical measures’, where a sanction would be applied directly via a subscriber's Internet provider.

Under DEA Section 3 the allegations were to be transmitted to the Internet Service Providers (ISPs) by the copyright holders. The ISPs would then be obliged to transmit notifications to their subscribers, informing them of the allegation. DEA Section 4 mandated the ISPs to keep a list of repeat offenders (a "copyright infringement list" ) who had reached a pre-determined threshold in terms of the number of infringements committed, and the data should be anonymous. The aim is that copyright holders could later seek a court order to identify subscribers against whom they want to take action.

Code not passed into law [ edit ]

The Act provided for this in the form of an Enabling Act , which required Ofcom (the communications regulator for the UK) to produce a draft Code that would then be passed by Parliament and come into force as a Statutory Instrument . However, by 2013, when the draft code was produced, the political climate had changed and a substantial controversy existed over the practicalities of the proposed Code. The draft code to create the Code was never passed into law or pursued after that date, and was "shelved" by 2014. [2]

Outline of Code provisions [ edit ]

The Code had comprised the following components:

Initial obligations code

The act does not specify the implementation detail for the measures. Instead, provides for the implementation to be drafted by Ofcom, in an Initial Obligations Code. Section 5 and Section 6 establish the process for Ofcom to write the code. Section 7 establishes in a very broad way what the code should contain, but leaves all the detail for Ofcom. The code must be approved by Parliament under the annulment procedure before it can come into force.

The decision to use the code of practice instead of specifying the measures in full within the text of the act has itself formed part of the controversy surrounding the measures. For example, the act did not specify the standard of evidence required. It also did not specify the threshold - number of infringements - for entry onto the copyright infringement list.

On 28 May 2010 Ofcom published a draft initial obligations code for consultation. [4] In June 2012, it issued a second consultation document [5]

Obligations to limit Internet access (technical measures)

After the Initial Obligations Code has been in force for one year, the act provides for a second set of measures to be brought in. The technical measures specified in the act Section 9 are the restriction or limitation of the speed of the broadband connection, restricting access to particular material online, and suspension (disconnection) of the service. The most controversial of them however, was disconnection of the subscriber for a period of time. It would function as an alternative to taking people to court, and in effect an extrajudicial process. Technical measures are to be brought in under another code, known as the code about obligations to limit Internet access Section 11 and Section 12 . This Code would be subject to the super-affirmative procedure in the British Parliament.


Section 13 of the act requires the provision of an independent appeals process, so that subscribers who wish to do so, may challenge a notification or (when implemented) a technical measure. Ofcom is required to set up an appeals body. This body will be an administrative body, independent of copyright holders and ISPs. Cases will not be heard in person. If technical measures are implemented, there will be a right to appeal to a First Tier Tribunal.

Obligations on ISPs and copyright holders

The act amends the Communications Act 2003. In this context, it places obligations on the ISP to apply both of the codes, and it gives Ofcom the responsibility of enforcing those obligations. Ofcom has the power to fine the ISPs up to £250,000 if they fail to meet those obligations. Section 14

The act also provides for the cost allocation to be determined by a further statutory instrument. Section 15 . To date, two draft statutory instruments have been laid before Parliament but neither has been passed into law.

Blocking Internet locations (sections 17-18) [ edit ] This section of the act has been repealed .

Section 17 and 18 would have allowed copyright holders to apply to a court to obtain website blocking injunctions where "a substantial amount of material has been, is being or is likely to be made available in infringement of copyright", or where a location "facilitates" such behaviour. In deciding whether to grant an injunction, the court would have been required to consider:

Steps taken by the operator of the location to prevent infringement Steps taken by the copyright owner to facilitate lawful access to the material Any representations made by a Minister of the Crown Whether the injunction would be likely to have a disproportionate effect on any person’s legitimate interests The importance of freedom of expression

Sections 17 and 18 would have had to be brought into force by a statutory instrument. However, following a review by Ofcom, [6] they were repealed on the basis that copyright holders already had the ability to use Section 97 of the Copyright, Designs and Patents Act to take court action against websites.

Other provisions [ edit ]

Other provisions in the act include

Section 42 an amendment to the Copyright, Designs and Patents Act 1988 to increase the penalty in connection with criminal liability for copyright and performing rights to a maximum of £50,000. Age classification of content is also in the act, which adopts the Pan European Game Information (PEGI) standard for video game ratings. [7] Changes to DAB radio in the United Kingdom including the reorganisation and merging of some of the local DAB ensembles [8] and a requirement for a digital switchover of terrestrial radio in the United Kingdom. [9] The management of .uk Internet domain registries The functions of the Channel Four Television Corporation The regulation of television and radio services The regulation of the use of the electromagnetic spectrum The Video Recordings Act 1984 Public lending right in relation to electronic publications. (Authors receive a 10p royalty for physical books lent from UK libraries but not ebook s. This act extends that royalty to cover some ebooks and audio books lent by libraries electronically. However the appropriate legislation has not yet been amended for this to take place. [10] ) Legislative process [ edit ]

The Digital Economy Act followed the Digital Britain report of 2009, [11] a policy document which outlined the United Kingdom Government's strategic vision for its digital economy. Lord Carter , Digital Britain minister, spent eight months considering the matter before releasing his final report in June 2009. The Digital Economy Bill was announced in the Queen's Speech on 18 November 2009 to the United Kingdom parliament. [12] The bill went through three readings in the House of Lords, before being presented to the House of Commons for its first reading on 16 March 2010. [13]

Wash-up [ edit ]

The general election was called on 6 April 2010, which meant that the Digital Economy Act was running out of Parliamentary time, as Parliament was dissolved on 8 April. The Digital Economy Bill went into what is called wash-up . [14] The wash-up is an accelerated parliamentary process used after general elections have been called to rush unopposed legislation through parliament before dissolution. This meant it was not debated at length in the Commons. In return for supporting the Digital Economy Bill in the final wash-up vote the Conservatives demanded the removal of Clause 43 which related to orphan works , copyrighted works for which the copyright owner cannot be located, which had been criticised by photographers. Other clauses that were removed during wash-up included provisions for the funding of regional news consortia. [15] The bill received its second reading in the House of Commons on 6 April 2010.

There was support for the bill from both the governing Labour party and the opposition Conservatives. [16] It passed third reading on 7 April, [17] with Royal Assent granted on 8 April. The Act is in force, however the requirements for the sections relating to online piracy (ss.3-18) to have legal effect were never implemented.

Initial controversies arising from the proposed Act [ edit ] Controversial aspects [ edit ]

Aspects of the proposed Act which were strongly criticised included:

The Digital Economy Bill incorporated a graduated response policy despite the alleged file sharer not necessarily having to be convicted of copyright offences. [18] The bill also introduced fines of up to £50,000 for criminal offences relating to copyright infringement – for example if music is downloaded with intent to sell. The high penalty is considered to be proportionate to the harm caused to UK industries . [19] An appeals process exists whereby the accused can contest the case however, the concern has been expressed that this process will be costly and that, in requiring the individual to prove their innocence, the bill reverses the core principles of natural justice . [20] Critics saw serious repercussions and perceived the concepts as ill-considered and likely to prove "disastrous". [21] While the British Phonographic Institute claimed the bill was vital for the future of creative works in the UK. [20] The Conservative party spokesman for Culture and Media stated that those downloading should be given a criminal record. Conversely, the Liberal Democrat party spokesman for Culture and Media claimed the bill was reckless and dangerous stating that children could unwittingly be file sharing causing an entire family to lose their internet connection. In addition to this, there was concern that hackers may access internet connections to download files and leave the bill payer responsible. Providers of public Wi-Fi access is uncertain. Responsibility for breaches could be passed on to the provider due to the difficulty in identifying individual users. The internet provider therefore may risk losing internet access or facing a hefty fine if an infringement of copyright takes place. Many libraries and small cafés for example may find this impossible to adhere to as it would require detailed logging of all those requiring internet access. In libraries in particular this may provide challenges to the profession’s importance of user privacy and could force changes in future policies such as Acceptable Use Policies (AUP). Public libraries utilise AUPs in order to protect creative works from copyright infringement and themselves from possible legal liability. However, unless the AUP is accompanied by the provision of knowledge on how to obey laws it could be seen as unethical, as blame for any breaches is passed to the user. [22] The hospitality sector considered that it would be badly affected by the Act. The British Hospitality Association has stated that hotels would have particular problems in providing details of guest’s internet access to Internet Service Providers and entire hotels may face disconnection. They have also expressed their concern that an individual's actions may lead to such a drastic outcome. [23] Internet service providers were also hostile towards the bill. TalkTalk stated that suspending access to the internet breached human rights. This view may be shared by many, as a survey carried out by the BBC found that 87% of internet users felt internet access should be the "fundamental right of all people" . [24] Certainly, people require access to the internet for many aspects of their life for example shopping, online banking, education, work and even socialising. Furthermore, TalkTalk Director of Regulation, Andrew Heaney has acknowledged that file sharing is a problem but the answer is to educate people and create legal alternatives. Heaney has also argued that disconnected offenders will simply create other user names to hide their identity and continue downloading. TalkTalk has claimed that 80% of youngsters would continue to download regardless of the bill and that internet service providers are being forced to police this without any workable outcomes. [25] Cable company Virgin Media also criticized the Digital Economy Bill believing it to be heavy handed and likely to alienate customers . Virgin advocated the development of alternative services which people would choose instead of file sharing. [26]

There was also a high level of public activism and protest against the Act, in many forms. The Guardian reported that hundreds were expected to march outside the House of Commons on 24 March 2010. [27] Moreover, an estimated 12,000 people sent emails to their MPs, through the citizen advocacy organization 38 degrees. 38 degrees objected to the speed with which the bill was rushed through parliament, without proper debate, due to the imminent dissolution of parliament prior to a general election. [27] In October 2009 TalkTalk launched its Don't Disconnect Us campaign asking people to sign a petition against the proposal to cut off the internet connections of those accused of unauthorized file sharing. [28] By November 2009 the petition had almost 17,000 signatories [29] and by December had reached over 30,000. [30] The Pirate Party in the UK called for non-commercial file sharing to be legalized. Formed in 2009 and intending to enter candidates in the 2010 UK general election, the Pirate Party advocates reform to copyright and patent laws and a reduction in government surveillance. [31]

Opposition to the bill [ edit ]

The provisions relating to copyright infringement and especially technical measures were highly controversial and were criticised by digital rights campaigners. The Open Rights Group , a privacy and digital rights organisation, took their concerns to the House of Lords. [32] Concerns were raised about the impact on businesses offering Internet access to their customers, such as libraries and universities. [33] Jim Killock, executive director of the Open Rights Group, called the bill "an utter disgrace. This is an attack on everyone's right to communicate, work and gain an education". He said that "politicians have shown themselves to be incompetent and completely out of touch with an entire generation's values". [15]

38 Degrees , who worked with the Open Rights Group to mobilise opposition to the Act, state that over 22,000 people have emailed their MPs through their web site. 38 Degrees have also raised over £20,000 in donations to fund newspaper advertisements against the bill. [34] More than 35,000 people signed a Number 10 petition, [35] started by Andrew Heaney at ISP TalkTalk , objecting to being disconnected without fair trial. Over 100 people protested outside Parliament on 24 March 2010, including Labour MPs Tom Watson and John Grogan , Liberal Democrat prospective parliamentary candidate Bridget Fox, and writer and activist Cory Doctorow . [36] [37]

TalkTalk, Britain's second-largest ISP, has been a vociferous critic of the act. They opposed it from its earliest stages by staging media events, [38] declaring that they would fight against the new laws in court, and commissioning research to demonstrate that music fans would simply transition to other, non-P2P tools (such as "applications which scan thousands of internet radio stations and download the desired tracks"). [39] TalkTalk have also argued that the requirement in Ofcom's draft code of conduct that only ISPs with 400,000 customers or more would initially be subject to the Act "could [lead to] huge swathes of customers moving to smaller ISPs to avoid detection". BT said that they felt compelled to act "for our customers who otherwise run the risk of being treated unfairly". [ citation needed ]

The Pirate Party UK were strongly opposed to it. [40] The Green Party , whose Members of the European Parliament (MEPs) sit with the two Swedish Pirate Party MEPs in the same group, opposed the bill. "The Digital Economy Bill is deeply flawed and illiberal...Any Green MPs will provide a rallying point for opposition to the Digital Economy Bill." [41] The Liberal Democrats opposed the parts that relate to the blocking of people's Internet connections. [42] These parts were later dropped by the Conservative and Liberal Democrat coalition government (see below). [43]

Industry lobbying [ edit ]

The Secretary of State Lord Mandelson was widely believed to be responsible for the copyright infringement provisions that would see the disconnection of internet subscribers.In August 2009 Lord Mandelson was accused of caving in to a "big lobbying operation" after ordering for disconnection to be included in the Digital Economy Bill even though the Digital Britain report had rejected this type of punishment. [44] The Independent reported that according their Whitehall sources Lord Mandelson was persuaded that tough law were needed to reduce online copyright infringement following an intensive lobbying campaign by influential people in the music and film industry. [45]

It was also reported that there had been a meeting with DreamWorks co-founder David Geffen at the Rothschild family villa on the Greek island of Corfu. Lord Mandelson's spokesperson claimed that there had been no discussion of internet piracy during the Corfu dinner and suggested that the decision to reverse Lord Carter's findings had been taken in late July before the trip. [46] The Times reported after the Corfu meeting that an unnamed Whitehall source had confirmed that before this trip, Mandelson had shown little personal interest in the Digital Britain agenda, which has been ongoing for several years. According to The Times , Mandelson returned from holiday and effectively issued an edict that the regulation needs to be tougher. [47] At the time Mandelson denied that the two events were linked. [46]

In August 2011 a Freedom of Information (FOI) request showed that Lord Mandelson had decided to approve the inclusion of technical measures, such as the disconnection of internet access, some time before public consultation had finished. Letters from Lord Mandelson's office document talks with Lucian Grainge , CEO of Universal Music Group on 2 July 2009, and that on the following day Lord Mandelson advised Lord Carter about the "possibility of [the Secretary of State] having a power to direct Ofcom to go directly to introduce technical measures". The government made an announcement that disconnection, was being considered for inclusion in the Digital Economy Bill on 25 August 2009. [48] [49]

Support for the bill [ edit ]

The Design and Artists Copyright Society and the British Association of Picture Libraries and Agencies support the orphan works provision. [50] The Community Media Association supports the Act for the radio clauses stated to bring significant benefits to the community broadcasting sector as FM spectrum becomes available following digital radio switchover. [51] Attitudes of Internet Service Providers (ISPs) towards the copyright infringement provisions in the bill were mixed. In interviews with ISPs by TechRadar, Virgin Media said that they shared the commitment to address copyright infringement, but that persuasion not coercion is the key; a heavy-handed, punitive regime would simply alienate Internet users. Sky , which is both an ISP and a content provider, was supportive of the government's commitment to underpin the fight against illegal file sharing through legislation, but not directly of the "website banning" proposal. [52] [53]

Ofcom review of sections 17 and 18 [ edit ]

Following calls by citizens to repeal all or part of the Digital Economy Act on the Your Freedom website, [54] the government asked Ofcom in February 2011 to review whether sections 17 and 18 of the act on website blocking are technically workable. [55]

Following the review by Ofcom, the government announced on August 3, 2011, that sections 17 and 18 of the act were to be dropped as they were not practically enforceable, and also as the Copyright, Designs and Patents Act 1988 had been successfully used to block access to a website on the grounds of copyright infringement. [43] [56]

Cost of implementation [ edit ]

In response to a Freedom of Information (FOI) request Ofcom disclosed that it had spent £1.8 million in the 2011/12 financial year on the implementation of the online copyright infringement provisions, section 3 to 16 of the Digital Economy Act, and the site blocking provisions, section 17 and 18. Ofcom planned to spend another £4.0 million in 2012/13. These figures include £100,000 spent on reviewing the technical workability of section 17 and 18, a review commissioned by the Government in February 2011. According to Ofcom the Digital Economy Act provides that internet service providers and copyright owners bear the cost of section 3 to 16, including the cost to Ofcom and an appeals body. They are also liable to pay Ofcom's cost incurred prior to actual implementation. However, Ofcom notes that the April 2011 ruling by the High Court on the judicial review of the online copyright infringement provisions provides that internet service providers are not liable to pay towards Ofcom' cost or that of an appeals body. [57]

Post-legislative legal inquiries into the Act [ edit ] Judicial review [ edit ]

On 8 July 2010 TalkTalk were joined by BT , Britain's biggest ISP, in seeking a judicial review of the Act on the grounds of it receiving "insufficient scrutiny" and having the potential to "harm citizens and impact both businesses". [58] They questioned whether the provisions were proportionate, respected privacy law, complied with EU law on ISP liability, and suggested that they would hinder a single European market in telecommunications services. [59]

The High Court of Justice granted the review permission on 10 November 2010. [60] Mr Justice Kenneth Parker ruled in favour of the government on 20 April 2011. [61] BT and TalkTalk appealed the ruling, however their appeal was dismissed [62]

Select committee inquiry [ edit ]

On 10 November 2010, the same day as the judicial review, the Culture, Media and Sport Committee of Parliament announced an inquiry into the act. The inquiry will consider "the implementation, practicality and likely effectiveness of the relevant measures contained in the act", and "the scope for additional and new approaches to ensure that original work is appropriately rewarded in online". [63]

Digital Economy Act 2017 [ edit ]

This legislation was updated by the Digital Economy Act 2017 , which updates the anti-infringement provisions of existing laws, creates or updates criminal copyright breach provisions, and provides for a wider range of sentencing for criminal infringement.

Academic analysis and reference sources [ edit ] Andersen, B (2010) Shackling the digital economy means less for everyone: the impact on the music industry in Prometheus: Critical Studies in Innovation Volume 28, Issue 4, 2010 Barron, A (2011) Graduated Response A l'Anglaise: online copyright infringement and the Digital Economy Act 2010 Cammaerts,B and Meng,B (2011) Creative Destruction and Copyright Protection:Regulatory Responses to File-sharing Dutton, W Aiming at copyright infringers and hitting the digital economy in Prometheus Vol. 28, No. 4, December 2010, 385–388 Giblin, R (2013) Evaluating Graduated Response Horten, M (2013) A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedoms ZedBooks. Romero-Moreno, F (2013) Unblocking the Digital Economy Act 2010; human rights issues in the UK in International Review of Law, Computers & Technology, 21 March 2013 Romero-Moreno, F (2014) Incompatibility of the Digital Economy Act 2010 subscriber appeal process provisions with Article 6 of the ECHR in International Review of Law, Computers & Technology, 10 January 2014 Romero-Moreno, F (2016) The Digital Economy Act 2010: subscriber monitoring and the right to privacy under Article 8 of the ECHR in International Review of Law, Computers & Technology, 26 April 2016 See also [ edit ] Internet portal British Phonographic Industry (BPI) International Federation of the Phonographic Industry (IFPI) Related international law [ edit ] EU Copyright Directive ( European Union ) DADVSI & HADOPI law (France) Digital Millennium Copyright Act (United States) Ley Sinde (Spain) Telecoms Package ( European Union ) External links [ edit ] British Telecommunications Plc & TalkTalk Telecom Group v The Secretary of State for Business, Innovation and Skills [2011] EWHC 1021 (Admin) (20 April 2011) v t e United Kingdom legislation Pre-Parliamentary legislation List of English statutes Charter of Liberties Magna Carta Acts of Parliament by states preceding the Kingdom of Great Britain Acts of the Parliament of England to 1483 1485–1601 1603–1641 Interregnum (1642–1660) 1660–1699 1700–1706 Acts of the Parliament of Scotland Acts of Parliament of the Kingdom of Great Britain 1707–1719 1720–1739 1740–1759 1760–1779 1780–1800 Acts of the Parliament of Ireland to 1700 1701–1800 Acts of Parliament of the United Kingdom of Great Britain and Ireland and the United Kingdom of Great Britain and Northern Ireland 1801–1819 1820–1839 1840–1859 1860–1879 1880–1899 1900–1919 1920 wkwhzhjh. moncler down parka men's1939 1940–1959 1960–1979 1980–1999 2000 to date Halsbury's Statutes Legislation.
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moncler snowsuit Digital Millennium Copyright Act From Wikipedia, the free encyclopedia   (Redirected from Dmca ) Jump to: navigation , search Digital Millennium Copyright Act Long title To amend title 17, United States Code, to implement the World Intellectual Property Organization Copyright Treaty and Performances and Phonograms Treaty, and for other purposes. Acronyms (colloquial) DMCA Enacted by the 105th United States Congress Effective October 28, 1998 Citations Public law Pub. L. 105-304 Statutes at Large 112 Stat. 2860 (1998) Codification Acts amended Copyright Act of 1976 Titles amended 5 (Government Organization and Employees); 17 (Copyrights); 28 (Judiciary and Judicial Procedure); 35 (Patents) U.S.C. sections created 17 U.S.C. §§ 512, 1201–1205, 1301–1332; 28 U.S.C. § 4001 U.S.C. sections amended 17 U.S.C. §§ 101, 104, 104A, 108, 112, 114, 117, 701 Legislative history Introduced in the House of Representatives as H.R. 2281 by Rep. Howard Coble ( R - NC ) on July 29, 1997 Committee consideration by House Judiciary Committee (Subcommittee on Courts and Intellectual Property); House Commerce Committee (Subcommittee on Telecommunications, Trade, and Consumer Protection) Passed the House on August 4, 1998 ( voice vote ) Passed the Senate on September 17, 1998 (unanimous consent) Reported by the joint conference committee on October 8, 1998; agreed to by the Senate on October 8, 1998 (consent) and by the House on October 12, 1998 (voice vote) Signed into law by President Bill Clinton on October 28, 1998

The Digital Millennium Copyright Act (DMCA) is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet . [1] [2] Passed on October 12, 1998, by a unanimous vote in the United States Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA amended Title 17 of the United States Code to extend the reach of copyright, while limiting the liability of the providers of online services for copyright infringement by their users.

The DMCA's principal innovation in the field of copyright is the exemption from direct and indirect liability of Internet service providers and other intermediaries. This exemption was adopted by the European Union in the Electronic Commerce Directive 2000. The Copyright Directive 2001 implemented the 1996 WIPO Copyright Treaty in the EU.

Contents 1 Provisions 1.1 Title I: WIPO Copyright and Performances and Phonograms Treaties Implementation Act 1.2 Title II: Online Copyright Infringement Liability Limitation Act 1.3 Title III: Computer Maintenance Competition Assurance Act 1.4 Title IV: Miscellaneous Provisions 1.5 Title V: Vessel Hull Design Protection Act 2 Anti-circumvention exemptions 2.1 Section 1201 Study 2.2 Previous exemptions 3 Linking to infringing content 3.1 Edelman v. N2H2 3.2 RealNetworks, Inc. v. DVD Copy Control Association, Inc. 3.3 Viacom Inc. v. YouTube, Google Inc. 3.4 IO Group, Inc. v. Veoh Networks, Inc. 3.5 Vernor v. Autodesk, Inc. 3.6 Lenz v. Universal Music Corp. 3.7 Flava Works Inc. v. Gunter 3.8 Ouellette v. Viacom International Inc. 3.9 Sony v. George Hotz 3.10 Automattic, Inc. and Oliver Hotham v. Nick Steiner 4 Criticisms 4.1 Abuse of takedown notice 4.2 Abuse of the anti-circumvention provision 4.3 Effect on analog video equipment 4.4 Effect on research 4.5 Effect on innovation and competition 4.6 Reform and opposition 5 See also 6 References 7 External links

Provisions [ edit ] Title I: WIPO Copyright and Performances and Phonograms Treaties Implementation Act [ edit ]

DMCA Title I, the WIPO Copyright and Performances and Phonograms Treaties Implementation Act , amends U.S. copyright law to comply with the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty , adopted at the WIPO Diplomatic Conference in December 1996. The treaties have two major portions. One portion includes works covered by several treaties in U.S. copy prevention laws and gave the title its name. For further analysis of this portion of the Act and of cases under it, see WIPO Copyright and Performances and Phonograms Treaties Implementation Act .

The second portion (17 U.S.C. 1201) is often known as the DMCA anti-circumvention provisions. These provisions changed the remedies for the circumvention of copy-prevention systems (also called "technical protection measures") and required that all analog video recorders have support for a specific form of copy prevention created by Macrovision (now Rovi Corporation ) built in, giving Macrovision an effective monopoly on the analog video-recording copy-prevention market. The section contains a number of specific limitations and exemptions, for such things as government research and reverse engineering in specified situations. Although, section 1201(c) of the title stated that the section does not change the underlying substantive copyright infringement rights, remedies, or defenses, it did not make those defenses available in circumvention actions. The section does not include a fair use exemption from criminality nor a scienter requirement, so criminal liability could attach to even unintended circumvention for legitimate purposes. [3]

Title II: Online Copyright Infringement Liability Limitation Act [ edit ]

DMCA Title II, the Online Copyright Infringement Liability Limitation Act ("OCILLA"), creates a safe harbor for online service providers (OSPs, including ISPs ) against copyright infringement liability, provided they meet specific requirements. [4] OSPs must adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to alleged infringing material (or remove such material from their systems) when they receive notification of an infringement claim from a copyright holder or the copyright holder's agent. OCILLA also includes a counternotification provision that offers OSPs a safe harbor from liability to their users when users claim that the material in question is not, in fact, infringing. OCILLA also facilitates issuing of subpoenas against OSPs to provide their users' identity.

Title III: Computer Maintenance Competition Assurance Act [ edit ]

DMCA Title III modified section 117 of the copyright title so that those repairing computers could make certain temporary, limited copies while working on a computer. It reversed the precedent set in MAI Systems Corp. v. Peak Computer, Inc. , 991 F.2d 511 (9th Cir. 1993).

Title IV: Miscellaneous Provisions [ edit ]

DMCA Title IV contains an assortment of provisions:

Clarified and added to the duties of the Copyright Office . Added ephemeral copy for broadcasters provisions, including certain statutory licenses . Added provisions to facilitate distance education . Added provisions to assist libraries with keeping phonorecords of sound recordings. Added provisions relating to collective bargaining and the transfer of movie rights. Title V: Vessel Hull Design Protection Act [ edit ]

DMCA Title V added sections 1301 through 1332 to add a sui generis protection for boat hull designs. Boat hull designs were not considered covered under copyright law because boats are useful articles whose form cannot be cleanly separated from their function. [5] [6]

Anti-circumvention exemptions [ edit ] This section's factual accuracy may be compromised due to out-of-date information. Please update this article to reflect recent events or newly available information. (May 2013)

In addition to the safe harbors and exemptions the statute explicitly provides, 17 U.S.C. 1201(a)(1) requires that the Librarian of Congress issue exemptions from the prohibition against circumvention of access-control technology. Exemptions are granted when it is shown that access-control technology has had a substantial adverse effect on the ability of people to make non-infringing uses of copyrighted works.

The exemption rules are revised every three years. Exemption proposals are submitted by the public to the Registrar of Copyrights, and after a process of hearings and public comments, the final rule is recommended by the Registrar and issued by the Librarian. Exemptions expire after three years and must be resubmitted for the next rulemaking cycle. Consequently, the exemptions issued in the prior rulemakings in 2000, 2003, 2006, 2010 and 2013 are no longer valid.

Section 1201 Study [ edit ] This section is incomplete. (October 2016)

After much criticism (see below ), on December 29, 2015, the Copyright Office initiated a study to assess the operation of section 1201 and the triennial rulemaking process. This is different from usual public comments on exemption proposals. It includes the role of the anti-trafficking provisions and permanent exemptions, and the requirements of the rulemaking itself. The Office has issued a Notice of Inquiry requesting public comment. [7]

Several comments were posted by individuals and organizations. [8] An individual recalls that the Copyright Clause has limitations. [9] Association of American Publishers et al. hold there is no need to amend the statute or to significantly alter the rulemaking. They are happy with the protection they are being granted, including anti-trafficking provisions, and talk of placing the cart before the horse, when they argue about requiring a proof of the mindset that consumers would have when utilizing circumvention tools before actual acts of circumvention occur. In their opinion, the meaning of Section 1201 is to extend , not merely duplicate, copyright holder's rights. [10] Society of American Archivists say they are not aware that the anti-trafficking provisions of section 1201(a)(2) and 1201(b) have had any impact in deterring copyright infringement. They do know, however, that the provisions have created an absurd, Catch-22 situation for any archives that sought to adhere to the letter of the law. [11] iFixit also talks of Catch-22 on stressing that since it is up to proponents to show that an exemption is relevant, they need to show that there’s overwhelming market demand if only it were legal . [12] Rapid7 notice that DMCA adversely affects good faith security research by forbidding researchers from circumventing technological protection measures (TPMs) to analyze software for vulnerabilities. [13] Cyberlaw Clinic at Harvard Law School points out that the rulemaking is a complicated, ad hoc , and unduly burdensome process. [14]

The Learning Disabilities Association of America (LDA) commented that circumventing DRM restrictions to meet accessibility needs deserves a permanent exception. [15] Entertainment Software Association gives a vivid and detailed description of a flourishing market which is only possible because of DMCA. [16] They are deeply concerned about people with disabilities, but that concern is already being taken care of by the copyright holders, so that no permanent exception is needed. [17]

Comments have also been submitted by, among others, R Street Institute [18] American Association of Law Libraries , [19] Business Software Alliance , [20] Alliance of Automobile Manufacturers , [21] [22] Association of American Universities et al. , [23] Copyright Alliance , [24] [25] Association for Computing Machinery U.S. Public Policy Council, [26] the Software and Information Industry Association , [27] [28] DVD Copy Control Association (“DVD CCA”) et al. , [29] Microsoft Corporation , [30] Association for Competitive Technology , [31] Public Knowledge , [32] [33] American Automobile Association . [34]

Previous exemptions [ edit ]

The Copyright Office approved two exemptions in 2000; four in 2003; six in 2006 and 2010.

2000, 2003, 2006 rulemakings

In 2000, the first rulemaking, the Office exempted (a) "Compilations consisting of lists of websites blocked by filtering software applications" (renewed in 2003 but not renewed in 2006); and (b) "Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage, or obsoleteness." (revised and limited in 2003 and again in 2006). In 2003, the 2000 "literary works including computer programs" exemption was limited to "Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete" and this exemption was renewed in both 2006 and 2010. The 2003 exemption for text readers of ebooks was renewed in both 2006 and 2010. The 2003 exemption for obsolete software and video game formats was renewed in 2006 but not in 2010. The 2000 filtering exemption was revised and renewed in 2003, but was not renewed in 2006. The 2006 exemption for sound recordings allowed after security flaws were found in a copy protection system on some Sony CDs was not renewed in 2010. An exemption covering the audiovisual works included in the educational library of a college or university's film or media studies department was not renewed in 2010. This exemption was replaced with an exemption on DVDs protected by the Content Scrambling System when circumvention is for the purpose of criticism or comment using short sections, for educational, documentary or non-profit use. The 2006 exemption for wireless handsets connecting to wireless networks was revised in 2010 to specify used handsets and require authorization from the wireless network operator. Another exemption for wireless handsets was introduced in 2010 specific to interoperability software on the phone itself. [35]

2010 rulemaking

The 2010 exemptions, issued in July 2010, are:

Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances: Educational uses by college and university professors and by college and university film and media studies students; Documentary filmmaking; Obsolete software and video game formats. Noncommercial videos. (A new exemption in 2010, similar to a previous educational exemption.) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset. (A new exemption in 2010.) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network. (Revised from a similar exemption approved in 2006.) Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if: The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law. (A new exemption in 2010.) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace. (A renewed exemption from 2006, based on a similar exemption approved in 2003.) Literary works distributed in e-book format when all existing e-book editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book's read-aloud function or of screen readers that render the text into a specialized format. (A renewed exemption from 2006, based on a similar exemption approved in 2003.) 2012 rulemaking

The 2012 exemptions, issued in November 2012, [36] are for:

Literary works, distributed electronically, that are protected by technological measures that either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies Computer programs that enable smartphones and portable all-purpose mobile computing devices to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the smartphone or device, or to permit removal of software from the smartphone or device Computer programs that enable certain types of wireless devices to connect to a wireless telecommunications network, when circumvention is undertaken solely in order to connect to a wireless telecommunications network and such connection is authorized by the operator of such network Motion pictures (including television shows and videos), as defined in 17 U.S.C. 101, where circumvention is undertaken solely in order to make use of short portions of the motion pictures for the purpose of criticism or comment in limited instances Motion pictures and other audiovisual works on DVDs that are protected by the Content Scrambling System, or that are distributed by an online service and protected by technological measures that control access to such works, where circumvention is related to developing captioning and descriptive audio technologies 2015 rulemaking

The 2015 exemptions, issued in October 2015, [37] are for:

Motion pictures (including television shows and videos), as defined in 17 U.S.C. 101, where circumvention is undertaken solely in order to make use of short portions of the motion pictures for the purpose of criticism or comment in limited instances, Literary works, distributed electronically, that are protected by technological measures that either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies, Computer programs that enable the following types of wireless devices to connect to a wireless telecommunications network, when circumvention is undertaken solely in order to connect to a wireless telecommunications network and such connection is authorized by the operator of such network, Computer programs that enable smartphones and portable all-purpose mobile computing devices to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the smartphone or device, or to permit removal of software from the smartphone or device, Computer programs that enable smart televisions to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the smart television, Computer programs that are contained in and control the functioning of a motorized land vehicle such as a personal automobile, commercial motor vehicle or mechanized agricultural vehicle, except for computer programs primarily designed for the control of telematics or entertainment systems for such vehicle, when circumvention is a necessary step undertaken by the authorized owner of the vehicle to allow the diagnosis, repair or lawful modification of a vehicle function, Computer programs, where the circumvention is undertaken on a lawfully acquired device or machine on which the computer program operates solely for the purpose of good-faith security research and does not violate any applicable law, Video games in the form of computer programs embodied in physical or downloaded formats that have been lawfully acquired as complete games, when the copyright owner or its authorized representative has ceased to provide access to an external computer server necessary to facilitate an authentication process to enable local gameplay, Computer programs that operate 3D printers that employ microchip-reliant technological measures to limit the use of feedstock, when circumvention is accomplished solely for the purpose of using alternative feedstock and not for the purpose of accessing design software, design files or proprietary data, and Literary works consisting of compilations of data generated by medical devices that are wholly or partially implanted in the body or by their corresponding personal monitoring systems, where such circumvention is undertaken by a patient for the sole purpose of lawfully accessing the data generated by his or her own device or monitoring system. Linking to infringing content [ edit ]

The law is currently unsettled with regard to websites that contain links to infringing material; however, there have been a few lower-court decisions which have ruled against linking in some narrowly prescribed circumstances. One is when the owner of a website has already been issued an injunction against posting infringing material on their website and then links to the same material in an attempt to circumvent the injunction. Another area involves linking to software or devices which are designed to circumvent ( digital rights management ) devices, or links from websites whose sole purpose is to circumvent copyright protection by linking to copyrighted material. [38]

This section needs expansion. You can help by adding to it . (November 2008) Edelman v. N2H2 [ edit ]

In July 2002, American Civil Liberties Union filed a lawsuit on the behalf of Benjamin Edelman, a computer researcher at Berkman Center for Internet and Society, seeking a declaratory judgment to affirm his first amendment rights when reverse engineering the censorware product of defendant N2H2 in case he intended to publish the finding. N2H2 filed a motion to dismiss, which the court granted. [ citation needed ]

RealNetworks, Inc. v. DVD Copy Control Association, Inc. [ edit ] Main article: RealNetworks, Inc. v. DVD Copy Control Association, Inc.

In August 2009, the DVD Copy Control Association won a lawsuit against RealNetworks for violating copyright law in selling its RealDVD software, allowing users to copy DVDs and store them on a harddrive. The DVD Copy Control Association claimed that Real violated the DMCA by circumventing anti-piracy measures ARccOS Protection and RipGuard , as well as breaking Real's licensing agreement with the Content Scrambling System. [39]

Viacom Inc. v. YouTube, Google Inc. [ edit ] Main article: Viacom International Inc. v. YouTube, Inc.

On March 13, 2007, Viacom filed a lawsuit against YouTube and its corporate parent Google for copyright infringement seeking more than $1 billion in damages. The complaint was filed in the U.S. District Court for the Southern District of New York .

Viacom claims the popular video-sharing site was engaging in "massive intentional copyright infringement" for making available a contended 160,000 unauthorized clips of Viacom's entertainment programming. Google relied on the 1998 Digital Millennium Copyright Act's "safe harbor" provision to shield them from liability. [40]

On June 23, 2010, U.S. District Judge Louis Stanton granted summary judgment in favor of YouTube. [41] The court held that YouTube is protected by the safe harbor of the DMCA. Viacom appealed to the U.S. Court of Appeals for the Second Circuit. [42]

On April 5, 2012, the federal Second Circuit Court of Appeals vacated Judge Louis Stanton's ruling, and instead ruled that Viacom had presented enough evidence against YouTube to warrant a trial, and the case should not have been thrown out in summary judgment. The court did uphold the ruling that YouTube could not be held liable based on "general knowledge" that users on its site were infringing copyright. The case was sent back to the District Court in New York, [43] and on April 18, 2013, Judge Stanton issued another order granting summary judgment in favor of YouTube. The case is over; no money changed hands.

IO Group, Inc. v. Veoh Networks, Inc. [ edit ] Main article: IO Group, Inc. v. Veoh Networks, Inc.

On June 23, 2006, IO Group, Inc. filed a complaint against Veoh Networks, Inc. in the U.S. District Court for California's Northern District. [44]

IO Group alleged that Veoh was responsible for copyright infringement by allowing videos owned by IO Group to be accessed through Veoh's online service without permission over 40,000 times between the dates June 1 and June 22. [45]

Veoh is a Flash video site relying on user contributed content. IO Group argued that since Veoh transcoded user uploaded videos to Flash format it became a direct infringer and the materials were under their direct control, thereby disqualifying them for DMCA safe harbor protection.

The ruling judge disagreed with the argument, stating that

"Veoh has simply established a system whereby software automatically processes user-submitted content and recasts it in a format that is readily accessible to its users. Veoh preselects the software parameters for the process from a range of default values set by the thirdparty software... But Veoh does not itself actively participate or supervise the uploading of files. Nor does it preview or select the files before the upload is completed. Instead, video files are uploaded through an automated process which is initiated entirely at the volition of Veoh's users."

The Court has granted the Veoh's motion for summary judgment , on the basis of the DMCA, holding that the defendant's video-sharing web site complied and was entitled to the protection of the statute's "safe harbor" provision. [46] Even though Veoh won the court case, it blamed the litigation as one of the causes of its preparing to file Chapter 7 bankruptcy and its subsequent sale to Qlipso. [47] [48]

Vernor v. Autodesk, Inc. [ edit ] Main article: Vernor v. Autodesk, Inc.

After numerous DMCA takedown notices in response to his eBay listings, Timothy S. Vernor sued Autodesk in August 2007 alleging that Autodesk abused the DMCA and disrupted his right to sell used software he bought at a garage sale. [49] In May 2008, a federal district judge in Washington State dismissed Autodesk's argument that the software's license agreement preempted the seller from his rights under the first-sale doctrine . [50] In September 2010, the U.S. Court of Appeals for the Ninth Circuit reversed, holding that "a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user's ability to transfer the software; and (3) imposes notable use restrictions." [51]

Lenz v.

Penalties are provided for knowing material misrepresentations in either a notice or a counter notice. Any person who knowingly materially misrepresents that material is infringing or that it was removed or blocked through mistake or misidentification, is liable for any resulting damages (including costs and attorneys' fees) incurred by the alleged infringer, the copyright owner or its licensee, or the service provider. (Section 512(f)).

Limitation for Information Location Tools Section 512(d) relates to hyperlinks online directories, search engines and the like. It limits liability for the acts of referring or linking users to a site that contains infringing material by using such information location tools, if the following conditions are met:

The provider must not have the requisite level of knowledge that the material is infringing. The knowledge standard is the same as under the limitation for information residing on systems or networks. If the provider has the right and ability to control the infringing activity, the provider must not receive a financial benefit directly attributable to the activity. Upon receiving a notification of claimed infringement, the provider must expeditiously take down or block access to the material. These are essentially the same conditions that apply under the previous limitation, with some differences in the notification requirements. The provisions establishing safeguards against the possibility of erroneous or fraudulent notifications, as discussed above, as well as those protecting the provider against claims based on having taken down the material apply to this limitation. (Sections 512(f)-(g)).

Special Rules Regarding Liability of Nonprofit Educational Institutions Section 512(e) determines when the actions or knowledge of a faculty member or graduate student employee who is performing a teaching or research function may affect the eligibility of a nonprofit educational institution for one of the four limitations on liability As to the limitations for transitory communications or system caching, the faculty member or student shall be considered a "person other than the provider," so as to avoid disqualifying the institution from eligibility. As to the other limitations, the knowledge or awareness of the faculty member or student will not be attributed to the institution. The following conditions must be met

the faculty member or graduate student's infringing activities do not involve providing online access to course materials that were required or recommended during the past three years; the institution has not received more than two notifications over the past three years that the faculty member or graduate student was infringing, and the institution provides all of its users with informational materials describing and promoting compliance with copyright law. TITLE III: COMPUTER MAINTENANCE OR REPAIR

Title III expands the existing exemption relating to computer programs in section 117 of the Copyright Act, which allows the owner of a copy of a program to make reproductions or adaptations when necessary to use the program in conjunction with a computer. The amendment permits the owner or lessee of a computer to make or authorize the making of a copy of a computer program in the course of maintaining or repairing that computer. The exemption only permits a copy that is made automatically when a computer is activated, and only if the computer already lawfully contains an authorized copy of the program The new copy cannot be used in any other manner and must be destroyed immediately after the maintenance or repair is completed.


Clarification of the Authority of the Copyright Office Section 401(b), adds language to section 701 of the Copyright Act confirming the Copyright Office's authority to continue to perform the policy and international functions that it has carried out for decade's under its existing general authority.

Ephemeral Recordings for Broadcasters Section 112 of the Copyright Act grants an exemption for the making of "ephemeral recordings." These are recordings made in order to facilitate a transmission. Under this exemption, for example, a radio station can record a set of songs and broadcast from the new recording rather than from the original CDs (which would have to be changed "on the fly" during the course of a broadcast).

As it existed prior to enactment of the DMCA section 112 permitted a transmitting organization to make and retain for up to six months (hence the term "ephemeral") no more than one copy of a work if it was entitled to transmit a public performance or display of the work either under a license or by virtue of the fact that there is no general public performance right in sound recordings (as distinguished from musical works).

The Digital Performance Right in Sound Recordings Act of 1995 (DPRA) created, for the first time in US. copyright law, a limited public performance right in sound recordings. The right only covers public performances by means of digital transmission and is subject to an exemption for digital broadcasts (i.e., transmissions by FCC licensed terrestrial broadcast stations) and a statutory license for certain subscription transmissions that are not made on demand (i.e., in response to the specific request of a recipient)

Section 402 of the DMCA expands the section 112 exemption to include recordings that are made to facilitate the digital transmission of a sound recording where the transmission is made under the DPRA's exemption for digital broadcasts or statutory license. As amended section 112 also permits in some circumstances the circumvention of access control technologies in order to enable an organization to make an ephemeral recording.

Distance Education Study In the course of consideration of the DMCA, legislators expressed an interest in amending the Copyright Act to promote distance education, possibly through an expansion of the existing exception for instructional broadcasting in section 110(2).Section 403 of the DMCA directs the ' e Copyright Office to consult with affected parties and make recommendations to Congress on how to promote distance education through digital technologies. The Office must report to Congress within six months of enactment.

The Copyright Office is directed to consider the following issues:

The need for a new exemption; Categories of works to be included in any exemption; Appropriate quantitative limitations on the portions of works that may be used under any exemption; Which parties should be eligible for any exemption; Which parties should be eligible recipients of distance education material under any exemption; The extent to which use of technological protection measures should be mandated as a condition of eligibility for any exemption; The extent to which the availability of licenses should be considered in assessing eligibility for any exemption; and Other issues as appropriate. Exemption for Nonprofit Libraries and Archives Section 404 of the DMCA amends the exemption for nonprofit libraries and archives in section 108 of the Copyright Act to accommodate digital technologies and evolving preservation practices. Prior to enactment of the DMCA, section 108 permitted such libraries and archives to make a single facsimile (Le., not digital) copy of a work for purposes of preservation or interlibrary loan. As amended, section 108 permits up to three copies, which may be digital, provided that digital copies are not made available to the public outside the library premises. In addition, the amended section permits such a library or archive to copy a work into a new format if the original format becomes obsolete- that 'is, the machine or device used to render the work perceptible is no longer manufactured or is no longer reasonably available in the commercial marketplace.

Webcasting Amendments to the Digital Performance Right in Sound Recordings As discussed above, in 1995 Congress enacted the DPRA creating a performance right in sound recordings that is limited to digital transmissions Under that legislation, three categories of digital transmissions were addressed: broadcast transmissions, which were exempted from. the performance right; subscription transmissions, which were generally subject to a statutory license; and on-demand transmissions, which were subject to the full exclusive right. Broadcast transmissions under the DPRA are transmissions made by FCC-licensed terrestrial broadcast stations.

In the past several years, a number of entities have begun making digital transmissions of sound recordings over the Internet using streaming audio technologies. This activity does not fall squarely within any of the three categories that were addressed in the DPRA. Section 405 of the DMCA amends the DPRA, expanding the statutory license for subscription transmissions to include webcasting as a new category of "eligible nonsubscription transmissions."

In addition to expanding the scope of the statutory license, the DMCA revises the criteria that any entity must meet in order to be eligible for the license (other than those who are subject to a grandfather clause, leaving the existing criteria intact). It revises the considerations for setting rates as well (again, subject to a grandfather clause), directing arbitration panels convened under the law to set the royalty rates at fair market value.

This provision of the DMCA also creates a new statutory license for making ephemeral recordings. As indicated above, section 402 of the DMCA amends section 112 of the Copyright Act to permit the making of a single ephemeral recording to facilitate the digital transmission of sound recording that is permitted either under the DPRA's broadcasting exemption or statutory license. Transmitting organizations that wish to make more than the single ephemeral recording of a sound recording that is permitted under the outright exemption in section 112 are now eligible for a statutory license to make such additional ephemeral recordings. In addition, the new statutory license applies to the making of ephemeral recordings by transmitting organizations other than broadcasters who are exempt from the digital performance right, who are not covered by the expanded exemption in section 402 of the DMCA.

Assumption of Contractual Obligations upon Transfers of Rights in Motion Pictures Section 416 addresses concerns about the ability of writers, directors and screen actors to obtain residual payments for the exploitation of motion pictures in situations where the producer is no longer able to make these payments. "Me guilds' collective bargaining agreements currently require producers to obtain assumption agreements from distributors in certain circumstances, by which the distributor assumes the producer's obligation to make such residual payments. Some production companies apparently do not always do so, leaving the guilds without contractual privity enabling them to seek recourse from the distributor.

The DMCA adds a new chapter to Title 28of the US. Code that imposes on transferees those obligations to make residual payments that the producer would be required to have the transferee assume under the relevant collective bargaining agreement. The obligations attach only if the distributor knew or had reason to know that the motion picture was produced subject to a collective bargaining agreement or in. the event of a court order confirming an arbitration award under the collective bargaining agreement that the producer cannot satisfy within ninety days. There are two classes of transfers that are excluded from the scope of this provision, The first is transfers limited to public performance rights, and the second is grants of security interests, along with any subsequent transfers from the security interest holder.

The provision also directs the Comptroller General in consultation with the Register of Copyrights, to conduct a study on the conditions in the motion picture industry that gave rise to this provision, and the impact of the provision on the industry. The study is due two years from enactment.


Title V of the DMCA, entitled the Vessel Hull Design Protection Act (VHDPA), adds a new chapter 13 to Title 17 of the US. Code. It creates a new system for protecting original designs of certain useful articles that make the article attractive or distinctive in appearance. For purposes of the VHDPA, "useful articles" are limited to the hulls (including the decks) of vessels no longer than 200 feet.

A design is protected under the VHDPA as soon as a useful article embodying the design is made public or a registration for the design is published. Protection is lost if an application for registration is not made within two years after a design is first made public, but a design is not registrable if it has been made public more than one year before the date of the application for registration. Once registered, protection continues for ten years from the date protection begins

The VHDPA is subject to a legislative sunset: the Act expires two years from enactment (October 28, 2000). The Copyright Office is directed to conduct two joint studies with the Patent and Trademark Office- the first by October 28, 1999 and the second by October 28, 2000-- evaluating the impact of the VHDPA.

EFFECTIVE DATES Most provisions of the DMCA are effective on the date of enactment. There are, however, several exceptions. The technical amendments in Title I that relate to eligibility of works for protection under U.S. copyright law by virtue of the new WIPO treaties do not take effect until the relevant treaty comes into force.

Similarly, restoration of copyright protection for such works does not become effective until the relevant treaty comes into force. The prohibition on the act of circumvention of access control measures does not take effect until two years from enactment (October 28, 2000).

1 Pub. L No. 105-304,112 Stat. 2860 (Oct. 28,1998).
2 "Copying" is used in this context as shorthand for the exercise of any of the exclusive rights of an author under section 106 of the Copyright Act. Consequently, a technological measure that prevents unauthorized distribution or public performance of a work would fall in this second category.
3 The Fairness in Musical Licensing Act, Title II of Pub. L. No. 105-298, 112 Stat. 2827, 2830-34 (Oct. 27, 1998) also a" a new section 512 to the Copyright Act. Ibis duplication of section numbers will need to be corrected in a technical amendments bill.

Information Technology Division 003 Cope Administration Bldg. Middle Tennessee State University 1301 E. Main St. Murfreesboro, TN 37132 voice: (615) 898-2512 fax: (615) 898-5720