Section 1201 Study

The United States Copyright Office has completed the first comprehensive public study assessing the operation of section 1201 of title 17, United States Code. Enacted in 1998 as part of the Digital Millennium Copyright Act (“DMCA”), section 1201 prohibits the circumvention of technological measures employed by or on behalf of copyright owners to protect access to their works (also known as “access controls”), as well as the trafficking in technology or services that facilitate such circumvention. It also prohibits trafficking in technologies or services that facilitate circumvention of technological measures that protect the exclusive rights granted to copyright owners under title 17 (also known as ‘‘copy controls’’). In addition, section 1201 establishes a triennial rulemaking process through which the Librarian of Congress, following a public proceeding conducted by the Register of Copyrights in consultation with the National Telecommunications and Information Administration of the Department of Commerce (“NTIA”), may grant limited exceptions to the bar on circumventing access controls.

At the request of House Judiciary Committee Ranking Member John Conyers, Jr., the Office undertook a comprehensive study on the impact and effectiveness of section 1201. The Office invited and received public comments on a broad range of issues, including the statute’s effect on consumer interests, the role of the anti-trafficking provisions, the adequacy of the statutory exemptions for activities such as reverse engineering and security research, the triennial rulemaking process, and a discussion of any proposed amendments on U.S. trade obligations. The Office submitted its report to Congress on June 22, 2017.

In its report, the Office does not recommend altering the basic framework of section 1201, concluding that its overall structure and scope remain sound. It does, however, recommend certain legislative updates, including expanding existing exemptions for security and encryption research and adding new provisions to allow circumvention for other purposes, such as the use of assistive reading technologies and the repair of devices. The report also recommends an amendment to give the Librarian of Congress discretion to authorize third parties to assist the beneficiaries of temporary exemptions granted via the statute’s triennial rulemaking proceeding. In addition, the report identifies changes to the Office’s administration of the rulemaking to streamline the process for renewing previously adopted exemptions.