expansions of existing exemptions, seven proposed entirely new exemptions, and four contained a combination of both expansions and new exemptions. The Office then held seven days of public hearings in which it heard testimony from numerous participants. After the hearings, the Office issued written questions to hearing participants regarding certain proposed classes.[1] Finally, the Office held several ex parte meetings with participants concerning ten proposed classes.[2]
As required by section 1201(a)(1), the Register consulted with NTIA during this rulemaking. NTIA provided input at various stages and participated in the virtual public hearings. NTIA formally communicated its views on each of the proposed exemptions to the Register on October 1, 2021. The Office addresses NTIA’s substantive views on the proposed classes below. NTIA’s recommendations can be viewed at https://cdn.loc.gov/copyright/1201/2021/2021_NTIA_DMCA_Letter.pdf.
III. Summary of Register’s Recommendation
A. Renewal Recommendations
As set forth in the NPRM, the Register received petitions to renew each of the exemptions adopted pursuant to the seventh triennial rulemaking. Eight comments in response to renewal petitions raised discrete concerns with specific petitions, but none opposed the verbatim readoption of an existing regulatory exemption or disputed the reliability of the previously analyzed administrative record.[3] The Register recommends renewal of these exemptions based on the information provided in the renewal petitions and the lack of meaningful opposition, finding that the conditions that led to adoption of the exemptions are likely to continue during the next triennial period. The existing exemptions, and the bases for the recommendation to readopt each exemption in accordance with the streamlined renewal process, are discussed in detail in the Recommendation and summarized briefly below. Where noted, these exemptions serve as a baseline in considering requests for expansion.
1. Audiovisual Works—Educational and Derivative Uses
Multiple individuals and organizations petitioned to renew the exemption covering the use of short portions of motion pictures for various educational and derivative uses.[4] The Office did not receive meaningful opposition to readoption of these exemptions. Petitions to renew the various subparts of the exemption are discussed below. The existing exemption and its various subparts collectively serve as the baseline in assessing whether to recommend any expansions in Class 1.
a. Audiovisual Works—Criticism and Comment, Teaching, or Scholarship—Universities and K–12 Educational Institutions.[5]
Multiple individuals and organizations petitioned to renew the exemption for motion pictures for educational purposes by college and university or K–12 faculty and students. The Office did not receive substantive opposition to readoption of this exemption. The petitions demonstrated that educators and students continue to rely on excerpts from digital media for class presentations and coursework. For example, a collective of individuals and organizations provided several examples of professors using DVD clips in the classroom. A group of individual educators and educational organizations[6] broadly suggested that the “entire field” of video essays or multimedia criticism “could not have existed in the United States without fair use and the 1201 educational exemption.”[7] Petitioners demonstrated personal knowledge and experience with regard to this exemption based on their representation of thousands of digital and literacy educators and/or members supporting educators and students, combined with past participation in the section 1201 triennial rulemaking. The Register finds that petitioners demonstrated a continuing need and justification for the exemption.
b. Audiovisual Works—Criticism and Comment—Massive Open Online Courses (“MOOCs”).[8]
A collective of individuals and organizations and Brigham Young University (“BYU”) petitioned to renew the exemption for educational uses of motion pictures in MOOCs. The Office did not receive meaningful opposition to readoption of this exemption. The petitions demonstrated the continuing need and justification for the exemption, stating that instructors continue to rely on the exemption to develop, provide, and improve MOOCs, as well as to increase the number of (and therefore access to) MOOCs in the field of film and media studies.
c. Audiovisual Works—Criticism and Comment—Digital and Media Literacy Programs[9]
Library Copyright Alliance (“LCA”) and Renee Hobbs petitioned to renew the exemption for motion pictures for educational uses in nonprofit digital and media literacy programs offered by libraries, museums, and other organizations. No oppositions were filed against readoption of this exemption. The petition stated that librarians across the country have relied on the current exemption and will continue to do so for their digital and media literacy programs, thereby demonstrating the continuing need and justification for the exemption.
d. Audiovisual Works—Criticism and Comment—Multimedia E-books[10]
Multiple petitioners jointly sought to renew the exemption for the use of motion picture excerpts in nonfiction multimedia e-books. The Office did not receive meaningful opposition to readoption of this exemption. The petition demonstrated the continuing need and justification for the exemption. In addition, the petitioners demonstrated personal knowledge through Bobette Buster’s continued work on an e-book series based on her lecture series, “Deconstructing Master Filmmakers: The Uses of Cinematic Enchantment,” which “relies on the
- ↑ Participants’ post-hearing letter responses are available at https://www.copyright.gov/1201/2021/post-hearing/.
- ↑ All ex parte letters in the eighth triennial rulemaking can be found at https://www.copyright.gov/1201/2021/ex-partecommunications.html.
- ↑ Exemptions to Permit Circumvention of Access Controls on Copyrighted Works, 85 FR 65293, 65295 (Oct. 15, 2020); see also Exemptions to Permit Circumvention of Access Controls on Copyrighted Works, 85 FR 37399, 37402 (June 22, 2020) (describing “meaningful opposition” standard).
- ↑ See 37 CFR 201.40(b)(1). In the 2018 rulemaking, this recommended regulatory language was the result of consideration of one proposed class of works that grouped together five petitions. See 2018 Recommendation at 31–34.
- ↑ The Register’s analysis and conclusions for this subpart, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at IV.A.1.
- ↑ The individuals and organizations include Peter Decherney, Katherine Sender, John L. Jackson, Int’l Commc’n Ass’n, Soc’y for Cinema and Media Studies, Console-ing Passions, Library Copyright All., and Am. Ass’n of Univ. Professors.
- ↑ Joint Educators AV Educ. Renewal Pet. at 3.
- ↑ The Register’s analysis and conclusions for this subpart, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at IV.A.2.
- ↑ The Register’s analysis and conclusions for this subpart, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at IV.A.3.
- ↑ The Register’s analysis and conclusions for this subpart, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at IV.A.4.
