A step by step explanation of the DMCA and its impact on national and international copyright law.

Title One: WIPO Treaty Implementation

The DMCA is broken down into five major parts or titles. The first of these addresses the issues of complying with the recent WIPO treaties. The treaties first required the US to recognize the copyrights of certain works from other countries and to recognize the copyrights of works that had fallen into the public domain in the US but not in their native countries. In other words, a work copyrighted in 1897 in another country would be considered old enough to be in the public domain in the US, but may not be so in its land of origin. In this case the DMCA says that the US will still recognize the copyright of that work until it enters the public domain in its country of origin.

The second change required by the WIPO Treaties was as follows. US law requires copyright owners to register their work with the Copyright Office before they can raise a lawsuit regarding infringement of their work. To comply with the WIPO treaties, the DMCA made all foreign works exempt from this rule. This means that works created outside the US do not need to be on file with the US Copyright Office before undertaking a copyright infringement lawsuit.

Finally the WIPO Treaties contain technological provisions with which the US needed to comply. These provisions apply to the circumvention of technological protection measures. The US basically proposed an amendment saying that it is illegal to circumvent technological measures taken to prevent people from accessing or copying a work to which they do not have a legal right. The exception to this rule is when people want to make a copy of a work for fair use. In this case they may circumvent copy protection technologies but it is never acceptable to circumvent these technologies to gain access to a work. In other words, there may be times when you can legally hack a computer program to make a copy of it, but at no time can you hack it in order to use it when you don’t have permission. The amendment also prohibits anyone from manufacturing devices or software which are primarily designed or marketed to help people circumvent technological protection measures.

There are several exceptions to this part of the DMCA. The broadest of these says that all law enforcement is completely exempt from all the technological provisions mentioned above. Another exception says that non-profit libraries and educational institutions are allowed to circumvent technologies to gain access to works in order to decide if they would like to would like to gain legal access to those works. The reverse engineering exemption allows people who have gained permission to circumvent technological protection measures in order to see if or how different software programs are compatible with each other. The encryption research exception allows people to circumvent protection measures in order to determine their flaws and to help further the development of better protection technologies. The protection of minors exception allows the court to impose technological protections safeguarding minors from material on the internet. The personal privacy exception allows people to circumvent technologies when the protected work is capable of collecting or disseminating personal information about their online activities. The security testing exception allows someone to circumvent the protection measures placed on a computer or network when the owner gives them permission for the purpose of security testing.

The WIPO treaties’ technological provisions also required the US to create certain protection provisions for Copyright Management Information (CMI). CMI is basically any information about the work outside of its actual content. This includes things like the title, the author, and terms and conditions for use. The DMCA amendment makes it illegal to alter the CMI attached to electronic works without permission or to knowingly distribute works in which the CMI has been illegally altered. There is once again an exception for law enforcement agencies. There is also an exception for certain broadcast stations and cable systems which can alter CMI when there is no intent toward any type of infringement.

The final part of Title I of the DMCA calls for the US Copyright Office to report back to Congress on the integrity of the new technological laws one year after the passage of the Act.

Title Two: Online Copyright Infringement Liability Limitation

Title two of the DMCA addresses the issue of internet service provider’s (ISPs) responsibility for copyright infringement committed by their subscribers. The DMCA says that ISPs are not responsible for the actions of their clients as long they meet a number of provisions. They first have to meet one of the four definitions of an ISP as set out by the DMCA. Each of the four types have a different set of provisions the ISP must comply with. They then have to inform their users of and carry out a policy which says that people caught using their service for infringement multiple times will have their subscriptions to the service canceled. Finally, this section of the DMCA gives the copyright holder a new right to call upon the courts to subpoena an ISP for the identification of an alleged copyright infringer.

Title Three: Computer Maintenance or Repair
This section of the DMCA gives the owner or lessee of a computer the right to copy computer programs which have lawfully been installed on the computer for the purpose of maintenance or repair. Once the computer has been repaired and the copy has served its purpose it must be destroyed.

Title Four: Miscellaneous Provisions

This section contains a number of miscellaneous provisions. The first confirms the Copyrights Office’s authority to carry out policy and international tasks which it has already been taking care for many years.

The second provision is related to ephemeral recordings for broadcast. These are copies of recordings made in order to simplify the broadcasting process. This might mean that a radio station uploads all the songs on its play list to a hard drive so that the DJ doesn’t have to fumble with CD’s or so programming can be automated. The DMCA amends the Copyright Act allowing similar recordings to be made in order to facilitate digital transmission. The DMCA also allows broadcasters to request copies of recordings from the copyright owner when they contain technological protection measures against copying. If the recordings can not be provided the radio station is given the right to bypass the protection technology in order to make their own copies.

The third provision in this miscellaneous section addresses Congress’ interest in the promotion of Distance Education. It called for the Copyright Office to consult relevant parties on the subject and return a report to Congress with in six months of the passage of the DMCA.

Provision number four of this section amends the copyright law in regard to libraries’ right to make copies of phonorecords. Under the DMCA libraries are now allowed to make up to three copies of a phonorecord provided that they properly label the copies with notice of copyright. If the copies are in digital format, however, they may not be removed from the library archive or premises. The library is also allowed to make copies for the purpose of replacing lost or damaged works and for the purpose of replacing works in obsolete formats. In these situations digital copies still may not leave the library.

The fifth provision makes amendments to copyright law addressing issues on webcasting. In 1995 the Digital Performance Right in Sound Recordings Act (DPRA) was passed by Congress. Under the DPRA, services providing digital transmissions are required to pay a performance royalty with the exception of digital broadcasts made by FCC licensed broadcast stations which are already exempt. This meant that owners of sound recording copyrights could now collect royalties for digital performances of their work. The DPRA covered three categories of digital transmission. They included the broadcast transmissions (which are exempt), subscription transmissions, and on-demand transmissions. Webcasting didn’t fit clearly into any of these three categories so the DMCA amended the DPRA so that webcasting would fall into the category of eligible non-subscription transmissions. The DMCA also created a statutory license to allow digital transmission organizations to make more then one ephemeral recording.

The sixth and final provision of the miscellaneous section of the DMCA applies to the motion picture business. It addresses situations where producers become unable to compensate writers, actors and directors who are owed residual payments. In the past production companies often ignored contractual agreements which said that the movie distributor would automatically take up these payments if the producer was unable to. The DMCA requires distributors to always fulfill this duty assuming that they knew or should have known ahead of time that this would be their responsibility should the producer fail to fulfill it.

Title Five: Protection of Certain Original Designs

This title of the DMCA is also known as the Vessel Haul Design Protection Act (VHDPA). The VHPDA adds a new category of copyrightable work to the Copyright Act. It allows for the protection of original designs of “useful articles” which are attractive or distinct in appearance. In this amendment “useful articles” are limited to the hulls of vessels no greater then 200 feet in length. Designs are protected once they have been publicly displayed in use but lose their copyright if they are not registered within two years of public release. Designs are protected for ten years upon publication. The VHDPA was set to expire two years after of the enactment of the DMCA. The Copyright Office was ordered to conduct two joint studies with the Patent and Trademark Office evaluating the impact of the VHDPA during its two year run.

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More DMCA Information:
Copyright Office DMCA Summary: http://www.copyright.gov/legislation/dmca.pdf
Nicolai Law Group DMCA Summary: http://www.niclawgrp.com/memos/200105.html

When this article was written, Brett Keller was a music industry student at Drexel University, Philadelphia, PA