DMCA Exemptions Extended for Documentary Filmmakers, but Work Yet Remains

Photo courtesy of ShutterstockBy A. Ebrahimi Bazaz and J. Walsh -- In yet another stirring up of creative freedom and digital media, the U.S. Librarian of Congress, heeding the recommendations of the Register of Copyrights, officially extended Digital Millennium Copyright Act (DMCA) exemptions for documentary filmmakers. These exemptions apply only to DVDs and streaming video, however. They do not yet provide protection for using material from Blu-Ray discs.

Before 2010, and under the DMCA by-laws, documentary filmmakers who needed clips from copyrighted, digital reproductions of films, were legally prohibited from ripping this content. In direct contradiction to the Fair Use clause of the Copyright

Act, the oft-discussed Section 1201 of the DMCA made it illegal for filmmakers to “rip” encrypted, copyrighted material from DVDs and streamed videos.

In 2008, NAMAC member organizations Kartemquin Films and the International Documentary Association (IDA), with the support of California IP Lawyer Michael Donaldson and the Center for Social Media, and with the legal assistance of the University of Southern California’s Intellectual Property & Technology Law Clinic, filed the first in a series of requests to exempt documentary filmmakers from the prohibition on ripping from DVDs and streaming video.

In 2009, the National Alliance for Media Arts and Culture (NAMAC) — along with a coalition of other leading media arts organizations and documentary filmmakers (identified here in the comments submitted to the Copyright Office), filed comments in support of Kartemquin and IDA’s request. This collective push for exemptions was made in an effort to protect fair use, access to socially relevant, copyrighted material, and the sociopolitical significance of documentary films. As the commenters wrote in 2009:

Since the inception of the documentary form, countless films have been made that recall historic events, make a cultural critique or provide social commentary, expose hidden truths, or serve educational purposes; and the doctrine of fair use and the availability of public domain works have been necessary in order to do so […] The DMCA’s prohibition on circumvention of [Technological Protection Measures] is slowly suffocating documentary film because it is crippling documentary filmmakers’ ability to make fair use of copyrighted works and to use public domain works in their films.

In 2010, the US Copyright Office granted this exemption and recently, in October of this year (2012), thanks again to the advocacy efforts of this broad coalition of media organizations, the exemptions for documentary filmmakers were renewed.

“The Copyright Office’s renewal of this exemption ensures that documentary filmmakers and academics have access to this otherwise restricted material,” noted Jack Walsh, Executive Director of NAMAC. “This guarantees the free flow of information that is critical to filmmakers seeking social justice and to academics across age groups, as they teach the increasingly critical skills of media literacy.”

NAMAC’s commitment to copyright issues, as expressed in our policy statements, is to ensure the free flow of information for our democracy. As one of the authoring organizations for the Center for Social Media’s groundbreaking Documentary Filmmakers Statement of Best Practices in Fair Use, we regularly file comments and sign on to legal amicus briefs in support of fair use, as the struggle to protect it is an ongoing one.

For example, the exemptions this year do not apply to Blu-Ray discs. The Copyright Office of the Library of Congress will next meet in three years to review current exemptions and add new ones. In advance of that meeting, the media arts community can file comments requesting that the exemptions for documentary filmmakers be extended to include Blu-Ray, as it could come to supplant DVD technology, thereby obsolescing the current exemptions.

Furthermore, though Public Knowledge filed claims seeking the removal of this prohibition, according to the DMCA, it is still illegal for users to transfer a movie from a DVD they've purchased, to another device. In this dynamic, transmedia media landscape, the "space-shifting" prohibition of the DMCA seems out of touch with current realities. Public Knowledge is working to "incorporate noncommercial personal uses into the definition of fair use.”

NAMAC will keep you updated with policy alerts, news, and information regarding these issues that are of vital importance to our media making community.

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