Jonathan Band’s DMCA Memo
THE DIGITAL MILLENNIUM COPYRIGHT ACT
TITLE IV: MISCELLANEOUS PROVISIONS
Title IV of the DMCA contains miscellaneous amendments to the Copyright Act.
Provisions Relating to the Register of Copyrights. Section 401 of the DMCA provides parity in compensation between the Register of Copyrights and the Commissioner of Patent and Trademarks and clarifies the duties and functions of the Register of Copyrights.
Ephemeral Recordings. Section 402 of the DMCA amends section 112 of Title 17 to address two issues concerning the application of the ephemeral recording exemption in the digital age. The first issue is the relationship between the ephemeral recording exemption and the Digital Performance Right in Sound Recordings Act of 1995 ("DPRSRA"). Section 402 changes the existing language of the ephemeral recording exemption (redesignated as 112(a)(1)) to extend explicitly to broadcasters the same privilege with respect to digital broadcasts that they already enjoy with respect to analog broadcasts.
The second issue is the relationship between the ephemeral recording exemption and the anticircumvention provisions in the new section 1201 of the Copyright Act. Section 402 addresses the concerns that if use of copy protection technologies became widespread, a transmitting organization might be prevented from engaging in its traditional activities of assembling transmission programs and making ephemeral recordings permitted by section 112. Section 402 adds to section 112 a new paragraph that permits transmitting organizations to engage in activities that otherwise would violate section 1201(a)(1) in certain limited circumstances when necessary for the exercise of the transmitting organization’s privilege to make ephemeral recordings.
Distance Education Study. Section 403 of the DMCA directs the Register of Copyright to consult with representatives of copyright owners, nonprofit educational institutions, and nonprofit libraries and archives and to submit to the Congress within six months recommendations on how to promote "distance education" through digital technologies.
Exemption for Libraries and Archives. Section 404 of the DMCA updates section 108 of the Copyright Act to allow libraries and archives to take advantage of digital technologies when engaging in specified preservation activities. The amendment to subsection 108(a)(3) is intended to ease the burden on libraries and archives of the current law’s requirement that a notice of copyright be included on copies that are reproduced under section 108. Under this amendment, such notice would be required only where the particular copy that is reproduced by the library or archive itself bears a notice. The amendment to subsection 108(b) permits a library or archive to make up to three copies or phonorecords, rather than just one, for purposes of preservation and security or for deposit for research use in another library or archives, and permits such copies or phonorecords to be made in digital as well as analog formats. The amendment provides that any such copy in a digital format must not be otherwise distributed in that format and must not be available to the public outside the premises of the library or archives.
Scope of Exclusive Rights in Sound Recordings; Ephemeral Recordings. Section 405 of the DMCA contains various amendments to sections 112 and 114 of the Copyright Act. The amendments are aimed at achieving two purposes: first, to further a stated objective of Congress when it passed the DPRSRA to ensure that recording artists and record companies will be protected as new technologies affect the ways in which their creative works are used; and second, to create fair and efficient licensing mechanisms that address the complex issues facing copyright owners and copyright users as a result of the rapid growth of digital audio services. This amendment accomplishes both of these objectives by creating two statutory licenses for certain performances and reproductions of sound recordings in the digital environment.
Section 405 amends section 114 by creating a statutory license for certain nonsubscription and new subscription transmissions. Subscription transmissions by services providing service to customers on July 31, 1998, remain subject to the statutory license created by the DPRSRA, with certain exceptions. Section 405 also amends section 114 to clarify that certain types of programming practices should be considered interactive and therefore subject to a sound recording copyright owner’s exclusive rights.
Section 405 also amends section 112 by offering a statutory license for certain types of reproductions made to facilitate transmissions subject to the statutory licenses in section 114 or which qualify for certain exemptions from a sound recording copyright owner’s performance right. Section 112 refers to such reproductions as "ephemeral recordings." The statutory license created by section 112(f) facilitates the licensing that is necessary for the making of ephemeral recordings by Internet music services.