Last week's promulgation by the United States' Librarian of Congress of a rule which creates an exemption for certain classes of works from the prohibition (in the US Copyright Act, first introduced by the Digital Millennium Copyright Act, or DMCA) against circumventing technological measures that control access to copyrighted works - which is rather a mouthful (or eyeful) - is noteworthy for a number of reasons which are of immediate relevance to Canadian entertainment lawyers and copyright enthusiasts.
First, the background (hat tip to Barry Sookman for providing a number of the relevant links): the US Copyright Office announced that it had made certain recommendations (here is the full text of the June 11, 2010 recommendation) to the Librarian of Congress regarding the Librarian's rulemaking power under the US Copyright Act, which recommendations had been accepted. The DMCA modified the US Copyright Act to prohibit circumvention of certain technological measures employed by or on behalf of copyright owners to protect their works. In particular, Section 1201(a)(1)(A) of the US Copyright Act provides that “[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title.” However, the DMCA also created, in Section 1201(a)(1)(B), a mechanism which permits the Librarian to make rules which modify the application of the prohibition by identifying particular classes of work whose users would be "adversely affected" by the operation of the prohibition in their ability to make non-infringing uses of the works in question. In short, if the Librarian determines that the prohibition on breaking technological measures would unduly and negatively interfere with the ability of users to engage in non-infringing uses, then the prohibition could be circumscribed by a rule so as to eliminate that negative impact.
Please see full article below for more information.
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