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2012 Tri-Annual DMCA Rulemaking Creates Expanded Use Rights for Educators

Martine Courant Rife
Lansing Community College
rifem@email.lcc.edu

Use rights for educators have been expanded in the latest Tri-Annual Digital Millennium Copyright Act (DMCA) Rulemaking Hearings. Numerous educators participated in the last round of hearings, including members of NCTE and the CCCC IP Caucus.

Exemptions from the anti-circumvention prohibition of section 1201 of the DMCA now include (from page 65266, Federal Register, Vol. 77, No. 208, Friday, October 26, 2012):

Motion Picture Excerpts—Commentary, Criticism, and Educational Uses

Motion pictures, as defined in 17 U.S.C. 101, on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System, where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary because reasonably available alternatives, such as non-circumventing methods or using screen capture software as provided for in alternative exemptions, are not able to produce the level of high-quality content required to achieve the desired criticism or comment on such motion pictures, and where circumvention is undertaken solely in order to make use of short portions of the motion pictures for the purpose of criticism or comment in the following instances:

(i) in noncommercial videos;
(ii) in documentary films;
(iii) in nonfiction multimedia ebooks offering film analysis; and
(iv) for educational purposes in film studies or other courses requiring close analysis of film and media excerpts, by college and university faculty, college and university students, and kindergarten through twelfth grade educators.

For purposes of this exemption, ‘‘noncommercial videos’’ includes videos created pursuant to a paid commission, provided that the commissioning entity’s use is noncommercial.

The new exemptions also provide exemption for “motion pictures” that are “lawfully made and acquired via online distribution services” (see http://www.copyright.gov/fedreg/2012/77fr65260.pdf).

As noted in the recommendation, “exemptions do not apply to the use of motion picture excerpts [for use] in fictional films, as the Register was unable to conclude on the record presented that such use is noninfringing” (http://www.copyright.gov/fedreg/2012/77fr65260.pdf).

A limitation in the exemptions is that if a less intrusive means of obtaining a movie clip can be used, such as using screen capture technology rather than circumventing encryption codes, then the less intrusive means should be used. If a lower quality clip is satisfactory for a given educational purpose (to illustrate a historical event for example), and that lower quality clip can be obtained through screen capture, then screen capture should be used. But if the purpose of the educational use requires a high quality image – to show emotions or issues with lighting for example, then it is acceptable to circumvent technological protections.

The prior exemptions from 2010 (see http://www.copyright.gov/1201/2006/index.html) were more limited for educators, as in that case only motion pictures on DVDs were covered, and only “educational uses by college and university professors and by college and university film and media studies students.” The 2012 exemptions are expanded to cover motion pictures in other forms than DVD and “acquired via online distribution services.” The 2012 exemptions further have been expanded to include “college and university students [generally], and kindergarten through twelfth grade educators.”

The tri-annual rulemaking hearings continue to be one bright light in the copyright horizon for educational use.

For information in general on the DMCA hearings, or to review the 2012 final recommendation, testimony, and responses, please visit http://www.copyright.gov/1201/.

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