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Pushing the Envelope on Copyright Exemptions

December 30, 2008

Professors, librarians and others have proposed that the U.S. Copyright Office significantly expand its list of when, and by whom, DVDs and other audiovisual materials should be exempted from technological measures that control access to copyrighted works. The list came in a Federal Register notice of proposed rule making that is one early step in a yearlong process that is likely to culminate next fall.

To back up: The Digital Millennium Copyright Act, passed in 1998, generally prohibited the circumvention of technologies that control access to copyrighted material -- for example, making it difficult to copy music or scenes or snippets from movies. But the law also set up a process by which the Library of Congress's Copyright Office, every three years, considers exemptions to that prohibition when petitioners can prove that the limitation substantially and adversely affects their ability to make "non-infringing" uses of copyrighted works.

As a general rule, entertainment companies and publishers tend to oppose significant exceptions (or any, in some cases), and the Copyright Office solicits recommendations and comments and conducts a series of hearings before making its decisions. The exemptions last for three years, and do not automatically renew.

As part of the last triennial review, in 2006, the Copyright Office altered its method for judging those exceptions. Under the change, the office shifted its focus from deciding simply which "classes of works" ("literary works," "sound recordings") warranted exemptions, to a more specific analysis that also took into account who should be able to circumvent access-control technologies and under what circumstances -- a change that allowed for narrower pools of copyrighted material to be exempted.

Professors of film and media studies took advantage of that new method to petition successfully in 2006 for an exemption for "audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors." They argued that faculty members could not create high-quality reproductions of movie clips using methods other than directly copying scenes from DVDs, and that they lost significant classroom time manually fast forwarding to the right scene or flipping from one DVD to another.

The Copyright Office granted an exemption that permitted film studies professors to avoid encryption to create their own compilations of clips from commercial and other DVDs to use while teaching -- one of a total of six exemptions granted by the government in 2006. The government granted the exception on the grounds that the use of such material was a "non-enfringing use" and that there were "no alternative means to meet the pedagogical needs of the professors... The professors demonstrated that the encrypted DVD versions of motion pictures often are of higher quality than copies in other available formats and contain attributes that are extremely important to teaching about film for a number of reasons. For example, the DVD version of a motion picture can preserve the original color balance and aspect ratio of older motion pictures when other available alternatives fail to do so."

In October, the Library of Congress announced the start of the latest triennial review process, and in the weeks since then, about 20 institutions, organizations, and people have suggested possible exemptions from the copyright law's prohibition on circumvention. They range from the American Federal for the Blind arguing for an exemption for electronic books that prevent the use of read-aloud functions or specialized formats that enable the visually impaired to use them to several related to the interoperability of cellular telephones.

Of most direct interest to people in higher education, though, are a set of proposals that seek to expand on the exemption won by the University of Pennsylvania's Peter Decherney and other film studies scholars in 2006. Decherney himself, an assistant professor of cinema studies and English, submitted a request that the exemption that allows film studies professors to reproduce clips from DVDs be altered in two ways: to allow the use of any audiovisual material in any university library (the current exemption applies only to material in a film studies department's own library) and to allow film studies students, not just professors, to use such material.

"[C]reating transformative multimedia work has become a key element of critical media education," Decherney and others wrote in their petition to the Copyright Office. "In a survey of the members of the Society for Cinema and Media Studies, more than half of the respondents said that they regularly ask their students to construct multimedia works as part of their coursework. Three years later, multimedia assignments for students have become pervasive. At the University of Pennsylvania, more than 300 students used library facilities for graded multimedia class assignments in spring 2008 alone." Just as it did for media studies instructors, he argues, the copyright law's prohibition against circumvention of access-control technologies stands in the way of that progress for students in the discipline.

Several other academics have submitted proposals in the current round that seek to expand the exemption in other ways.

The Library Copyright Alliance and Music Library Association suggest that all professor, not just those in film or media studies, be able to use movie clips as the current exemption allows. The same reasons the Copyright Office cited in granting the existing exemption in 2006 "apply with equal force to the use of film clips in other courses of study," the library groups wrote. "[H]igh quality clips enabled by the circumvention of CSS -- rather than low quality clips made by camcording -- are necessary outside of the media studies context. Sound quality, for example, is critical in language classes to ensure that students can understand the dialogue and detect dialectal differences. Music and theatre classes need high sound quality to reflect correctly the tone of musical instruments or the inflection of the human voice. High image quality enables students to see the nuances of facial expressions and hand gestures. These subtle non-verbal forms of communication may convey the essential point of a clip used in psychology, sociology, or literature

A similar argument in favor of extending the exemption to professors at "accredited colleges or universities" for "face-to-face teaching activities" was made by Kevin Smith, scholarly communications officer at Duke University, who cited a particularly striking (and ironic) example: that of Kathleen C. Wallace, who under the current rules is allowed to use homemade DVDs of movie clips in the classes she teaches as an adjunct professor in Duke's film and video department but not in the law classes she teaches as a professor and supervising attorney of clinical programs at nearby North Carolina Central University's School of Law.

"As a professor in Duke University’s Film, Video and Digital Department, I am able to cut and compile clips to teach students about global conflict and different cultural methods of resolution in course called, 'Conflict, Resolution and Film,' ” Wallace writes. "As a law professor and supervising attorney at North Carolina Central University (NCCU) in the field of dispute resolution, there is no exemption that permits me to circumvent the encryption of copyrighted works and compile film clips to enhance my ability to teach students to effectively manage and resolve conflict."

A proposal from the University of California at Berkeley's Media Resource Center would extend the exemption not only to all college professors, but to K-12 teachers as well, and Renee Hobbs, a professor of broadcasting, telecommunication and mass media at Temple University and founder of its Media Education Lab, would arguably go even further, seeking an exemption for "[a]udiovisual works that illustrate and/or relate to contemporary social issues used for the purpose of teaching the process of accessing, analyzing, evaluating, and communicating messages in different forms of media." Such a broad exemption is necessary, Hobbs says, to ensure the viability of media literacy education wherever it is undertaken.

Decherney, the Penn professor, said in an interview that the nearly yearlong process of review by the Copyright Office is likely to revolve around how successfully he, Hobbs, Smith and the others have argued for why "the current exemptions should be expanded.... The exemption for media professors has provided something really strong to build on, but it will be interesting to see how far [the Copyright Office] is willing to expand."

 

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