The Librarian of Congress has just released the most recent round of exemptions to the anti-circumvention provision of the Digital Millennium Copyright Act. During prior rulemaking rounds, the Librarian has carved out exceptions for the use of clips from DVDs for educational purposes, initially by film studies professors only but then expanded to faculty from any discipline. In this most recent round of rulemaking, the Librarian has recognized an exemption “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.” The Librarian clarified, however, that the exemptions do not apply to the use of motion picture excerpts in fictional films, as the Register of Copyrights was unable to conclude that such use is noninfringing. In the Notice, the Librarian explains:
[The Register of Copyright] noted that such uses fall within the favored purposes referenced in the preamble of Section 107 and, especially in light of the brevity of the excerpts used, are likely to be fair uses. More specifically, the Register determined that the proposed uses tended to be transformative in nature, employing short clips for purposes of criticism, comment, teaching, and/or scholarship, rather than for the works’ originally intended purpose. Despite thecommercial aspect of uses by documentary filmmakers and multimedia ebook authors, the Register noted that when a short excerpt of a motion picture is used for purposes of criticism and comment, even in a commercial context, it may well be a productive use that serves the essential function of fair use as a free speech safeguard. While the Register did not conclude that a court would find each and every one of proponents’ examples to be transformative, she did find that
the record amply supported the conclusion that a substantial number of the proffered examples likely would be considered transformative fair uses.
The Librarian further noted that the Register found no merit to opponents contention that licensing or screen capture technology should be utilized to accomplish the desired uses. Requiring licensing for the use of clips for the stated purposes would be contrary to judicial precedence of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) that such transformative uses were fair uses of copyrighted works.