The tenth U.S. rulemaking under section 1201 of the Digital Millennium Copyright Act (DMCA) shows how burdensome the U.S. model is for gaining exceptions to the digital locks that protect much content these days. Countries implementing their WIPO obligations should instead tie liability to infringement, and those bound by U.S. trade deals should keep their process for exceptions as simple as possible.
The U.S. Copyright Office’s launch of its latest rulemaking on exceptions that allow the circumvention of technological protection measures (TPMs) highlights the structural flaws of the U.S. framework. Between its burdensome administrative process and hyper-specific exemptions, the DMCA model stands as a cautionary tale for international lawmakers attempting to regulate TPMs.
The Roots of the Prohibition
The concept of legal prohibitions on the bypassing of TPMs first appeared in the Software Directive adopted by the European Economic Community in 1991. Bills prohibiting the circumvention of TPMs were introduced in the U.S. Congress soon thereafter but failed to advance. Then, the World Intellectual Property Organization included obligations concerning TPMs in the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) in 1996. These obligations were general and unspecific: countries were required to “provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty….” (WCT, Art. 11; see also WPPT, Art. 18).
It was left to each country to decide exactly how to satisfy this obligation. Many countries have implemented the WCT and the WPPT with relatively straightforward provisions that impose liability on the circumvention of TPMs only when infringement results. Often these countries also prohibit the development or sale (i.e., trafficking) of devices that circumvent TPMs for the purpose of infringing copyright. Because the rightsholder must show a nexus between the circumvention (or circumvention devices) and infringement, there is little concern about the TPM provision having a negative impact on legal activities, such as the exercise of limitations and exceptions in the copyright law for research.
Section 1201 of the DMCA
The United States took a different approach. In section 1201 of the DMCA, enacted in 1998, Congress prohibited the circumvention of a TPM for the purpose of accessing a work without the rightsholder’s authorization, regardless of whether infringement occurred. Further, Congress prohibited the trafficking in devices that could circumvent TPMs designed to prevent access or copying, again without regard to whether infringement occurred. Congress decided not to require a nexus between circumvention (or trafficking) and infringement because rightsholders argued that it would be too difficult for them to prove that nexus; circumventers and traffickers would just claim that they sought to engage in noninfringing activity. (It should be noted that some U.S. courts have required such a nexus.)
By not requiring a nexus between circumvention and infringement, Congress created a real risk that the provision could prevent noninfringing activity. To mitigate that risk, Congress included a set of permanent exceptions in section 1201, including for law enforcement, software reverse engineering, encryption research, and security testing. In addition, recognizing that there might be other circumstances under which a person might seek access to a work without the authorization of the rightsholder, Congress authorized the Librarian of Congress, to whom the Register of Copyrights reports, to conduct a rulemaking every three years to adopt temporary exemptions to this prohibition. The standard the Librarian must apply in the rulemaking is whether the person petitioning for an exemption is likely in the coming three years to be “adversely affected” by the prohibition “in their ability to make noninfringing uses” of a particular class of works.
The Triennial Rulemaking
The Copyright Office administers the rulemaking for the Librarian of Congress. Unfortunately, the Copyright Office has conducted the rulemaking like an adjudicatory proceeding, placing a high burden of proof on petitioners with numerous rounds of filings. The Office has interpreted the possible scope of the exemptions stringently, resulting in exceedingly narrow and technical exemptions. In the 2024 rulemaking cycle, the Register recommended and the Librarian adopted 27 separate exemptions, occupying some 5,000 words in the Code of Federal Regulations. The exemptions applied to motion pictures, literary works, computer programs, and video games for purposes such as preservation, education, accessibility for people with disabilities, text and data mining, and the repair of devices.
In the current cycle, petitioners have requested renewal of all 27 existing exemptions. (For the past few cycles, the Copyright Office has applied an expedited process for the renewal of existing exemptions in their current form. However, any modification or expansion requires going through the entire year-long process.) Petitions for several new exemptions relating to people with disabilities and the repair of products have also been filed.
The rulemaking is burdensome on petitioners seeking exemptions, the Copyright Office staff, other government agencies, and rightsholders. The proceedings generate voluminous filings and consume thousands of hours of staff time. The resulting exemptions are so complex that they are hard for potential users to employ, and because they are temporary, they do not provide businesses with the certainty necessary to plan adequately for compliance.
Exporting the U.S. Approach
The U.S. has sought to export its highly regulatory approach to anti-circumvention principally through trade agreements. These agreements, most recently the U.S.-Mexico-Canada Agreement (USMCA), which entered into force in 2020, contain a provision following the same basic template, based on section 1201 of the DMCA. The provision requires parties to prohibit the act of circumventing a TPM that prevents access to a work. Additionally, parties must prohibit the trafficking in devices that can circumvent TPMs that restrict access to or copying of works. The provision allows the adoption of permanent exceptions similar to those in section 1201 (e.g., law enforcement, software reverse engineering, encryption research, and security testing). Moreover, parties are allowed to adopt additional exceptions through a legislative, regulatory, or administrative proceeding. Significantly, in some agreements, these additional exceptions can be permanent (e.g., USMCA), but in others, the additional exceptions can last only three years (e.g., U.S.-Chile).
Satisfying the WCT and WPPT
The least burdensome way for a country to implement its obligations under the WCT and the WPPT is to adopt a straightforward prohibition on TPM circumvention that results in infringement. Such a provision is easy for legislators, users, and rightsholders to understand, and it appropriately balances the interests of rightsholders and users. A provision prohibiting the trafficking in circumvention devices should likewise have a nexus to infringement, but the WCT and WPPT make no mention of trafficking.
If a country is bound by trade agreements with the U.S. to adopt an approach more like that of section 1201 of the DMCA, the country should take full advantage of the flexibility in the agreement to adopt additional exceptions to ensure that legitimate activities such as preservation, education, accessibility for people with disabilities, text and data mining, and the repair of devices are not prejudiced. In particular, the country should ensure that its process for adopting additional exceptions is not as cumbersome as that under section 1201 of the DMCA.
