Copyright, e-Commerce and the DMCA

The Digital Millennium Copyright Act of 1998 (DMCA) was developed in part for the purpose of formulating national policies relating to protecting some emerging computer technologies in order to optimize the United States’ competitiveness in world markets and enhance the growth of the American economy in general.

International Electronic Marketplace

Because technology had vastly changed the methods in which copyrightable works could be disseminated and distributed since the latest version of federal copyright law was enacted in 1976 and would continue to change those methods, one of the major concerns of the IITF was that, without adequate protection of intellectual property in the international electronic marketplace, American creators of copyrightable works would be unwilling to enter that marketplace for fear of having their works pirated. Therefore, the IITF assisted in formulating policies that would allow creators of education, information and entertainment products to benefit fully from entry into the international electronic marketplace without risk of loss of their rights to their works.

Recommendation to Include Telecommunication Transmission of Copies Within Distribution

A subgroup of the IITF studied existing copyright laws and made several recommendations for amendments to accommodate technological advances, both already developed and yet to come. One of the recommendations was to include telecommunication transmission of copies within the distribution of copies of copyrighted work that is reserved to the copyright holder. The subgroup contended that this recommendation did not create a new right but merely recognized that a copy of digital work could be created by transmission through a computer network as easily as a copy of a printed work could be created by use of a photocopier or printing press.

Recommendation that Publication Include Distribution to Public by Electronic Means

The task force subgroup also recommended that the definition of publication be changed, noting that the legislative history of the existing copyright statute made it clear that publication did not take place when a material object did not change hands. In keeping with the expanded definition of copying to include transmission via computer network, the subgroup contended that whether a work had been published should depend on whether it had been distributed to the public, including by electronic means.

Recommendation to Make it Illegal to Defeat Electronic Copy-Prevention Scheme

Perhaps the most well-known and controversial recommendation of the subgroup was to provide technological protection in addition to legal protection to creators of copyrighted work by making it illegal to defeat an electronic copy-prevention scheme created by a copyright holder whether by use of hardware, a software program or other device, or to sell such devices. This recommendation was based on the recognition that no matter what technological steps creators took to protect their works within an environment in which it was exceedingly easy to copy and distribute materials, technologies would be quickly developed to circumvent those protections. Critics of this recommendation, which would be in fact incorporated into the DMCA, pointed out that not all uses of copyrighted work infringed copyrights and that indefeasible copy-protection schemes would prevent fair use and other legitimate uses of such materials.

In anticipation of this criticism, the subgroup observed that copyright holders were not required to facilitate unauthorized access to copyrighted materials. The subgroup reasoned that, if they were so required, copyright holders would be unable to charge a fee for distribution of copyrighted works or restrict their distribution at all. In addition, a circumvention device primarily intended and used for legitimate purposes such as fair use or to distribute materials in the public domain or that were otherwise ineligible for copyright would not be illegal under the recommended amendments.

DMCA Enacted in 1998

In 1996, the United States participated in a conference of the World Intellectual Property Organization (WIPO), which produced new multilateral treaties addressing the protection of copyrighted material in the international electronic marketplace. Legislation implementing the treaties was proposed the following year, and the end-product of that legislation, along with legislation proposed by the IITF, was the DMCA, enacted in 1998.

The DMCA is divided into the following five titles:

Title I implements the treaties that came out of the 1996 WIPO conference. Included in this title are the provisions recommended by the IITF that protect copy-protection schemes. Under the DMCA, it is illegal to sell devices that are primarily designed or produced to circumvent copy-protection measures and that have little or no other use. As for the act of circumvention itself, it is illegal to defeat a copy-protection scheme that prevents unauthorized access to copyrighted material; however, defeating a copy-protection scheme that prevents unauthorized copying for the purposes of fair use or other legitimate use of copyrighted materials is not illegal. Certain exemptions to these proscriptions are also provided in Title I. Other provisions in Title I shore up the integrity of copyright management information systems in order to ensure access to accurate copyright information.

Title II of the DMCA limits the liability of Internet service providers (ISP) for copyright infringement when conducting activities involving transitory communications, system caching, storage of information on systems or networks at the direction of ISP users, and information location tools.

Title III provides exemptions for making temporary copies of copyrighted material when maintaining or repairing computers.

Title IV provides several exceptions to the exclusive rights of copyright holders necessary to accommodate legitimate uses by libraries and for other purposes as well as uses made possible by computer networks, for example, the streaming of music and other copyrighted works over the Internet. It also solicits recommendations from the Register of Copyrights as to what exemptions might be appropriate for computer-based long-distance learning.

Title V protects certain vessel hull designs.