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Posted by Mark Hine at 2:45PM   |  Add a comment

Much has been written in the past months about revisions to the Rule Making on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works. I suspect, however, that there are still questions regarding this and related rule making that affect faculty in higher education. I am not a lawyer, nor qualified to give legal advice. I can only pass on the literal passages and what I interpret them to mean. 

First and foremost, it is important to point out that the modified exemptions refer to how the work is accessed -or explicitly the technological measures that control access. These exemptions do not, in my interpretation, modify Fair Use or any other copyright ruling. DVDs are protected by an encryption format known as the Content Scrambling System.  To extract DVD content or to duplicate DVD content, this feature must be electronically defeated, normally through ripping or copying software. The purpose of CSS is to deter wholesale duplication and distribution of copyrighted DVD material. Digital media, such as DVD content, is vulnerable to mass duplication because it is file based. It is much easier to transfer digital files across a network than it is to duplicate similar analog works and attempt to share them.  CSS, which serves a similar purpose to MacroVision in the VHS world, is a digital rights management technique.

The segment of interest found in the latest exemptions issued by the U.S. Copyright Office and the Librarian of Congress state that

"when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:"

"short portions" is embolden to address a common misconception about Fair Use and other copyright exemption language. This particular standard is clear that entire works are not covered by this convention. Therefore, the ripping of an entire movie is not covered by this exemption - only the relevant 'teaching moments' defined by the phrase reasonable grounds for believing that circumvention is necessary to fulfill the purpose. Other statues, such as the Teach Act, may grant other rights not considered here.

What is of further interest is the expansion of this clause to include the following (excerpted from the exemption language)

"(i) Educational uses by college and university professors and by college and university film and media studies students;
(ii) Documentary filmmaking;
(iii) Noncommercial videos."

Previously, this exemption included only film studies faculty but has been broadened to include a much larger audience. The limitation on student use remains restricted to "college and university film and media studies students".

In essence, observing the remaining exemptions and prohibitions in copyright law, excerpting video for educational use has been brought in to the mainstream. The exemption does not, however, address the re-distribution of these excerpts in higher ed environments. Instead, murky waters remain, leaving the definition of 'Educational uses' to other existing acts and the good faith efforts of educators.




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