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Subject: Preserving non-licensed media

Preserving non-licensed media

From: Janet Gertz <gertz<-a>
Date: Friday, October 31, 2008
Has anyone run into a situation with non-licensed media (e.g. DVDs
or books with digital media included) that you have been unable to
preserve due to your inability to circumvent technological
protection measures?

This pertains to a recent message from ARL concerning a provision in
the Digital Millennium Copyright Act (DMCA, section 1201) that
prohibits anyone from circumventing a "technological measure that
effectively controls access to a work." Because there are no useful
exemptions for libraries, educational institutions and users to
circumvent these technological protection measures or TPMs, the
Copyright Office conducts a rulemaking proceeding every three years
to determine whether users of copyrighted works including libraries
and educational institutions, are, or are likely to be "adversely
affected" in their ability to make non-infringing uses of a
particular class of copyrighted works because they cannot legally
circumvent TPMs. The Copyright Office recently announced the
initiation of another section 1201 proceeding with an initial filing
date of December 2, 2008. Now is the time for the library and higher
education community decide what, if any, exemptions should be
requested in this upcoming proceeding. Of particular interest is
information concerning preservation activities that may not be
possible due to the inability to circumvent TPMs.

Background: The Copyright Office and the Librarian of Congress
consider a number of factors when determining possible exemptions to
anti-circumvention measure. These include:

    *   "the availability for use of copyrighted works;

    *   the availability for use of works for nonprofit archival,
        preservation and educational purposes;

    *   the impact of the prohibition on circumvention has on
        criticism, comment, news reporting, teaching, scholarship or

    *   the effect of circumvention of TPMs on the market for or
        value of copyrighted works; and

    *   such other factors as the Librarian considers appropriate."

Based on the results of the rulemaking, particular classes of works
may be identified and then are exempt for three years from the
prohibition on circumvention to access for non-infringing purposes.
For example, the Librarian approved the following new exemption
relating to audiovisual works in the last rulemaking. "Audiovisual
works included in the educational library of a college or
university's film or media studies department, when circumvention is
accomplished for the purpose of making compilations of portions of
those works for educational use in the classroom by media studies or
film professors."

Importantly, the Copyright Office has concluded that all licensed
works are *not* subject to this section 1201 proceeding.

                  Conservation DistList Instance 22:26
                 Distributed: Sunday, November 2, 2008
                       Message Id: cdl-22-26-012
Received on Friday, 31 October, 2008

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