Digital Millenium Copyright Act (DMCA)

Summary of the Satellite Teleconference on the DMCA

On May 21st, 1999, LAUC-B Research and Professional Development Committee, with support from University Librarian Gerald Lowell, hosted UC Berkeley participation in the national Satellite Teleconference on the Digital Millenium Copyright Act (DMCA). About 40 persons from all sectors of the campus including the Library were in attendance. The Teleconference explored the impact of recent changes to U.S. copyright law. It was hosted by George Washington University, endorsed by the Coalition for Networked Information & EDUCAUSE, and co-sponsored by the American Association of Law Libraries, American Library Association, Association of Research Libraries, Medical Library Association and Special Libraries Association.

The panel of speakers included: Peter Jaszi, Professor of Law, Washington College of Law, American University; Georgia Harper, Office of the General Counsel, University of Texas; Laura Gasaway, Director of the Law Library and Professor of Law, University of North Carolina; Frederick Weingarten, Director of the Office of Information Technology Policy, ALA; and Sharon A. Hogan, University Librarian, University of Illinois at Chicago.

Peter Jaszi provided an overview of the history of U.S. copyright legislation that lead up to the DMCA. In recent years, "content providers" (e.g, book publishers, software producers) have become increasingly unhappy with the provisions of the 1976 Copyright Act, especially the doctrine of fair use. They feared the Internet and Digital networks would further weaken their rights, and began lobbying the government for more restrictive legislation. In 1995 a white paper on intellectual property was produced which was met with strong opposition from Librarians and Educators who believed the new guidelines were drawn too narrowly. The matter was referred to an international diplomatic conference which concluded with strong support for fair use and the rights of users. During 1998, the 105th congress passed two bills to amend the 1976 Copyright Act: the Sonny Bono Copyright Term Extension Act and the Digital Millenium Copyright Act (DMCA). However, the DMCA contains very complex and confusing language. The need to clarify the user-oriented aspects of the legislation continues to be a crucial topic of debate.

Georgia Harper discussed some key issues Librarians need to be concerned about in complying with the DMCA. The definition of "service provider" is very broad, and thus open to different interpretations. Other areas of complex language apply to conduit activities (transmitting and routing material) and long term storage of information. Examples of areas of ambiguity include links on web pages and attachments to email (e.g., a journal article). She stressed that complying with the DMCA will involve more than one person and department in the Library. She also discussed the concern that the stricter laws will have a "chilling effect" on academic research. However, Mr. Jaszi mentioned that the creation of an Information Policy could help deter some of these potential problems.

Laura Gasaway discussed the two parts of the new legislation that have implications for Libraries. The first is the Sonny Bono Copyright Term Extension Act of 1998 (PL-105-298), and the second is the changes in Section 108 of the original copyright act (which affect our procedures for distributing and copying information to users).

The Term Extension Act has changed the number of years before protected information can come into the public domain. Whereas previously the rule was "life of author + 50 years", it is now "life of the author + 70 years". Once a work passes into public domain, we do not have to seek permission to use it. Works that would have become public domain in 1998, now will not have that status until 2019. This has implications for Libraries and other research endeavors. For corporate, anonymous and pseudonymous works, the terms are 95 years after first publication, or 120 years after creation, whichever comes first.

The second big change has to do with "notice of copyright" - Section 401(b) (e.g. the small "c" surrounded by a circle and date, etc.). Previously, Libraries were simply required to provide a "notice of copyright" whenever materials were copied. The new legislation now requires that Libraries reproduce the original, real notice (e.g., small "c" in circle, etc.), instead of using the old stamp that said "Notice: this material might be protected by copyright". The only time Libraries can use the stamp is when the copyright notice was not included on the work by the copyright holder. This change will affect procedures in Interlibrary loan and copy service departments. There are also changes in the law regarding other formats, such as phonorecords and digital formats (even those used for preservation), which impact Libraries.

Fred Weingarten discussed the anti-circumvention aspects of the DMCA. He also echoed the sentiments of many who are grappling with and trying to comply with the new law-i.e., everytime he looks at this law, his understanding of it "evolves and changes" and he is concerned that this will be the fate for all of us for the next several years. The DMCA is still a "work in progress".

The anti-circumvention aspects of DMCA deal with the technological controls that are set to prevent illegal access to online databases. Like other aspects of the DMCA, the language is very broad and open to a wide range of interpretations. However, since there are criminal sanctions attached to violations of this section, Library administrators have reason to be concerned. For example, the parts of the law governing computer hardware and software could be associated with the product, on your computer, on the provider's computer, at an intermediary (e.g., an ISP) and any combination of the above. The law states one may not "circumvent" technological control measures, but whereas one section imposes a 2 year moratorium on enforcement (acknowledging there are still some unsolved issues surrounding the definition of "fair use"), this is negated by another section which does impose sanctions. Fred also pointed out a complication regarding the section that deals with "copyright management information"(CMI). The law states one "may not remove or alter CMI, or knowingly distribute materials in which CMI has been removed^"(there are some exceptions). The concern is that sometimes the technology transmitting the information can sometimes change it automatically, and this can happen without the Library's or user knowing it.

Sharon Hogan discussed the process of creating an "Information Policy" to deal with the DMCA-not only to respond and comply with DMCA, but also to build shared values within the Library or Academic institution which will need to know the new rules as they create new models of teaching and learning (e.g., multi-media web courses). She suggested having a forum for discussion that would bring together campus groups from all levels that will be affected by the new legislation (e.g., faculty, librarians, lawyers, technological staff, museum staff, University press and printing departments, duplicating services, etc.). In fact, the DMCA requires institutions to educate their faculty, students and staff, if they want to take advantage of the higher education exemptions. She stressed the importance of including the library's mission statement, focussing on the benefits of DMCA and providing a list of resources and contacts.

Following a question and answer session, Peter Jaszi wrapped up the conference with thoughts about the "Challenges Ahead" regarding U.S. copyright law. Internal things we need to do include: creating policies, consulting with all affected members of the community, staffing new functions, and making sure the library's procedures comply with the new standards. Prof. Jaszi stressed that we owe the positive features of the DMCA to the fact that between 1995-1998, libraries and schools organized to protect the doctrine of fair use and user rights. Nevertheless, external things we need to do include continuing our advocacy efforts with the unfinished work as pertains to distance education, database protection issues, and especially the ambiguity of the anti-circumvention rulemaking. Prof. Jaszi also thinks we need to do more than just respond to the compliance issues of DMCA. He believes we must also identify our own affirmative legislative agenda and to imagine what new provisions in American intellectual property law is needed to "reclaim the traditional balance of U.S. copyright law".

The Library arranged to have this teleconference videotaped. It is available for viewing in the Media Resources Center, 1st floor, Moffitt Library, along with a handout. Additional information about specific issues generated by this legislation can be found at:

Submitted by Mari Miller
1998-99 Chair,
UC LAUC-Berkeley, Research and Professional Development Committee