What is the Digital Millennium Copyright Act (DMCA)?
The DMCA was enacted in October 1998 primarily to bring U.S. copyright law into conformity with provisions of two World Intellectual Property Organization treaties to which the U.S. is a signatory. This Act facilitates the creation of a secure digital environment for use of copyrighted materials by encouraging the deployment of, and respect for, encryption and other technological protection systems. Accordingly, the DMCA prohibits (with certain limited exceptions): (1) manufacturing, importing, distributing, and providing products or services whose main purpose is to circumvent these systems; (2) taking action to engage in circumvention so as to gain unauthorized access to copyrighted works; and (3) removing, falsifying, or tampering with "copyright management information" (that is conveyed electronically with copyrighted works to identify them and their owners and provide other pertinent data about them). Beyond satisfying treaty obligations, the Act also seeks to clarify the rules for operating digital networks by (1) defining the circumstances that limit the liability of those entities that provide network servicesand (2) establishing procedures to facilitate the identification and correction of infringing activities engaged in by users through such networks.
Nothing in the DMCA would prevent an alleged infringer of a digital work from claiming that his or her use of the work was fair use under Section 107 of the Copyright Act. The same four factors would be considered in determining whether the use of the material was fair. However, the anti-circumvention provisions of the DMCA, referred to above, may have the practical effect of limiting access to, and therefore limiting use of, digitized works that are protected by encryption or other technological devices that physically prevent unlicensed copying, distribution, display, or performance of any portion of the works.
What special relevance does the DMCA have for the campus community?
By sanctioning the deployment of technological systems, the DMCA recognizes the rights that copyright owners (including university presses) have to protect their works against unauthorized access and copying that can be especially damaging in the open environment of higher education where the “free” exchange of information and ideas is encouraged.
However, the DMCA provides certain categories of immunity, or “safe harbors,” for online service providers (“a provider of online services or network access, or the operator of facilities therefore”). If colleges, universities, and college bookstores qualify under the DMCA as “service providers,” they may likely take advantage of the DMCA “safe harbor” limitations when acting as a service provider, regardless of whether such institutions are nonprofit. In order to take advantage of these “safe harbors,” a service provider must register a copyright agent with the U.S. Copyright Office at www.loc.gov/copyright, adopt and implement copyright policies, educate the campus community about the copyright law, implement a “notice and takedown” procedure for addressing receipt of infringement notices, and otherwise meet the requirements for protection.
The statute creates four categories of infringement for which a service provider may be eligible for protection, including (1) transitory communications, such as transmitting digital information from one point on a network to another at a third party’s request; (2) system caching, which is the practice of retaining copies of third-party material only for a limited time period; (3) information location tools, such as search engines and hyperlinks; and (4) storage of information on systems or networks including the posting of infringing material by a student, professor, or other third party on a college or university web site. (The fourth category is probably the most important in terms of relevance to an institution of higher education.) For more information on the Digital Millennium Copyright Act of 1998, go to www.loc.gov/copyright/legislation/dmca.pdf.
In 1998 the DCMA (Digital Millennium Copyright Act) passed into law, criminalizing circumventing copy-protection technology to access digital materials including audio and visual media such as DVDs.
However, in July 2010, the Librarian of Congress announced certain classes of works subject to the exemption from this prohibition. Significant for university professors wishing to use multimedia in their teaching is the following excerpt from the Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works:
(1) 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.