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5. Technological Protection Issues

The Digital Millennium Copyright Act (DMCA) prohibits the act of circumventing a technological measure that "effectively controls access" to a work protected by copyright.¹¹⁵ "Technological access controls" are mechanisms such as passwords or encryption that prevent viewing or listening to the work without authorization.

The law also contains two "antitrafficking" provisions. The first is aimed at devices and services that circumvent technological access controls. It prohibits manufacturing, importing, offering to the public, providing, or otherwise trafficking in technologies, products or services that

There is a similarly worded prohibition against trafficking in devices or services to circumvent rights controls.¹¹⁷ "Technological rights controls" are mechanisms that restrict copying the work or playing it in a particular environment without authorization. There is no prohibition on the act of circumventing rights controls. If one circumvents rights controls to infringe, then there is copyright-infringement liability but no liability for the circumvention; if one circumvents rights controls to exercise a privilege under copyright, there is no liability under copyright or for the circumvention.

There are some exceptions to these "anticircumvention" laws, but for the most part the exceptions are narrow. There is no exception for archiving, nor is there a general "fair use" type exception written into the statute.¹¹⁸ The law does, however, include an administrative procedure for creating new exemptions. Every three years, the Copyright Office conducts a rule-making proceeding to determine whether users of any particular class(es) of copyrighted works are, or are likely to be, adversely affected in their ability to make noninfringing uses of those works by the prohibition against circumventing technological access controls. If so, the Librarian of Congress, upon the Copyright Office's recommendation, lifts the prohibition on circumventing access controls for those classes of works for the ensuing three-year period.

The DMCA applies to copyrighted works, which in the case of pre-1972 sound recordings would include the underlying musical or other works still in copyright and pre-1972 sound recordings of foreign origin whose copyrights have been restored. The DMCA could potentially affect archiving in a couple of ways. First, the law would prohibit an archives from circumventing technological access controls to obtain access to copyrighted works. If an archives has legally defensible reasons for seeking to circumvent access controls, it could seek an exemption pursuant to the rule-making procedure discussed above. One of the exemptions granted in the most recent rule making addressed such a situation. The Internet Archive submitted evidence that its efforts to transfer computer programs and video games on obsolete media to a computer system for storage and preservation were stymied because the access controls accompanying those works required the original media to be present for the works to function. The exemption allows circumvention of the access controls on such works.¹¹⁹

The second potential problem is the DMCA's ban on the circulation of circumvention devices. Even where a library or an archives has valid access to a work, that work may be protected by a copy control. Circumventing the copy control will not violate the DMCA (its permissibility would be judged separately under the Copyright Act), but a library or an archives may not have the means readily available to make that copy because of the antitrafficking provision.

Technological protections are a potential hindrance to certain library preservation and replacement activities and may require a legislative solution rather than resort to the limited relief that the Copyright Office can provide through the rule-making mechanism. However, technological measures do not appear to be an obstacle to preservation of pre-1972 sound recordings, since such measures have been employed on phonorecords only recently with the advent of digital technology, and even now are not widely used.¹²⁰

The anticircumvention provisions of the DMCA have no relevance to a pre-1972 U.S. sound recording of a public domain work, as no work protected by federal copyright law is involved.

FOOTNOTES

¹¹⁵ § 1201(a)(1)(A).

¹¹⁶ § 1201(a)(2).

¹¹⁷ § 1201(b).

¹¹⁸ There is an exception that permits a nonprofit library, archive, or educational institution to circumvent a technological access control to make a good faith determination whether to acquire a copy of the protected work. However, the institution may not retain that copy longer than necessary to make that determination, nor use it for any other purpose. § 1201(d).

¹¹⁹ Copyright Office: Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, Final Rule, 68 Fed. Reg. 62,011 at 62,014 (October 31, 2003).

¹²⁰ It is possible that a pre-1972 sound recording of a public domain work might be digitally remastered and rereleased with technological protection. If there is sufficient new authorship to entitle the new sound recording to protection as a derivative work, the library could circumvent technological access controls only pursuant to a statutory exception in § 1201, but could circumvent rights controls to exercise any copyright privilege, provided it could find a means to circumvent. If there is not sufficient new authorship, then there is no copyright-protected work and no legal bar to circumventing access controls or rights controls.

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