Proposed US Rulemaking For Section 1201 Exemptions To Prohibition Against Circumvention of Technological Measures Protecting Copyrighted Works

Proposed US Rulemaking For Section 1201 Exemptions To Prohibition Against Circumvention of Technological Measures Protecting Copyrighted WorksDigital rights management systems (DRMS) are widely used across the globe to protect copyrighted works from unauthorised access and copying. Anti piracy and copyright infringement has become a major challenge for copyright holders and the enforcement agencies. Digital rights management systems (DRMS) have been introduced as part of the solution to the problem of online copyright violations.

Intellectual property rights (IPRs) issues in digital era are very complicated and require a different set of legal and regulatory framework. Their effective protection requires both technological and legal measures. We at Perry4Law organisation, Perry4Law Law Firm and PTLB believe that India needs a techno legal framework to deal with online legal issues.

Indian government is in the process of formulating the national IPR Policy of India and the same maybe released very soon. In fact, the first draft (PDF) of the policy has already been issued by IPR think tank constituted in this regard. We believe that the IPR policy must keep in mind the technology issues as well that have not been properly addressed by Indian government so far.

IPR Helpdesk of Perry4Law and PTLB has been actively engaged in spreading IPR awareness at national and international level for many years. In this work we are discussing the United State’s proposed rulemaking for Section 1201 exemptions to prohibition against circumvention of technological measures protecting copyrighted works. Those who are interested in reading about US Copyright law can also read the Compendium of U.S. Copyright Office Practices, Third Edition in this regard.

The successful rulemaking would allow the Librarian of Congress, upon the recommendation of the Register of Copyrights, to exempt certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works. The ultimate goal of the proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make non infringing uses due to the prohibition on circumvention of access controls. When such classes are identified, the Librarian publishes a rule exempting the classes from the prohibition against circumvention for the succeeding three-year period.

On December 12, 2014, the Office issued a Notice of Proposed Rulemaking (“NPRM”) initiating three rounds of public comment on the proposed classes including submission of documentary and multimedia evidence. Persons wishing to address proposed exemptions should carefully review the Notice of Inquiry to familiarise themselves with the substantive legal and evidentiary standards for the granting of an exemption under section 1201(a) (1). Stakeholders can submit their comments from time to time as per the requirements of the rulemaking.

The first round of public comment closes on February 6, 2015, and is limited to submissions from the proponents (i.e., those parties who proposed exemptions during the petition phase) and other members of the public who support the adoption of a proposed exemption, as well as any members of the public who neither support nor oppose an exemption but seek only to share pertinent information about a specific proposal. Any associated documentary and/or multimedia evidence must also be submitted by this date.

The second round of public comment closes on March 27, 2015, and will be limited to members of the public who oppose an exemption. Opponents should present the full legal and evidentiary basis for their opposition.  Any associated documentary and/or multimedia evidence must also be submitted by this date.

The third round of public comment closes on May 1, 2015, and will be limited to proponents and supporters of particular proposals, and those who neither support nor oppose a proposal, in either case who seek to reply to points made in the earlier rounds of comments. Reply comments should not raise new matters, but instead be limited to addressing arguments and evidence presented by others. Any associated documentary and/or multimedia evidence must also be submitted by this date.

The U.S. Copyright Office has categorised the proposals for exemptions received in response to its September 17, 2014 Notice (PDF) into twenty-seven proposed classes (PDF) of exemptions for further consideration. Commenters are required to provide separate submissions for each proposed class during each stage of the public comment period. Although a single comment may not encompass more than one proposed class, the same party may submit comments on multiple classes.

The Office is accepting comments in two ways. First, commenters who wish to provide a full legal and evidentiary basis for their position may submit comments in a long form format. Such comments should be limited to no more than 25 pages in length (which may be single-spaced but should be in at least 12-point type), not including any documentary evidence. To assist participants, the Office has provided a recommended long comment form (doc).

Second, for those commenters who wish to briefly express general support for or opposition to a proposed exemption, the Office is providing a recommended short comment form (doc). Short comments should be limited to no more than one page (which may be single-spaced but should be in at least 12-point type).

Comments and associated documentary evidence (but not multimedia evidence) should be uploaded as a single combined file via the comment submission page. Commenters submitting long form comments may also separately submit multimedia evidence. Multimedia evidence must be submitted separately via U.S. mail or hand delivered to the Office, on specified digital media, in an approved file format and labeled as described in the NPRM. Commenters should carefully review the NPRM for more detailed information concerning the recommended format and content of submissions, including documentary and multimedia evidence.

To meet accessibility standards, all comments and associated documentary evidence must be uploaded in a single file in either the Portable Document File (PDF) format that contains searchable, accessible text (not an image); Microsoft Word; WordPerfect; Rich Text Format (RTF); or ASCII text file format (not a scanned document). The maximum file size is 6 megabytes (MB). The name of the submitter (and organisation) should appear on both the form below and the face of the comment. Commenters should use the “Browse/Choose File” button on the form below to attach the comment file to the form and then to submit the completed form to the Office.  If a commenter cannot meet a particular submission requirement, the commenter should contact the Office at 202-707-8350 for special instructions.

The Office intends to post the written comments and documentary evidence on its website in the form in which they are received. Parties should keep in mind that any private, confidential, or personally identifiable information appearing in their comment will be accessible to the public.

We would list all our comments and suggestions in this regard at this place so that a comprehensive coverage of this issue by us is possible. This would also help in consolidation of our comments and suggestions so that various stakeholders can use the same in the best possible manner.

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