Authors Alliance, joined by the Library Copyright Alliance and the American Association of University Professors, is petitioning the Copyright Office for a new three-year exemption to the Digital Millennium Copyright Act (“DMCA”) as part of the Copyright Office’s eighth triennial rulemaking process. If granted, our proposed exemption would allow researchers to bypass technical protection measures (“TPMs”) in order to conduct text and data mining research on literary works that are published electronically and motion pictures. This week, we responded to commenters who opposed the petition for this exemption.

Text and data mining (“TDM”) refers to automated analytical techniques aimed at analyzing digital text and data in order to generate information that reveals patterns, trends, and correlations in that text or data. TDM has great potential to enable groundbreaking research and contribute to the commons of knowledge. As a highly transformative use of copyrighted works done for purposes of research and scholarship, TDM fits firmly within the ambit of fair use.

But TDM researchers are currently hindered by Section 1201 of the DMCA, which prohibits the circumvention of TPMs used by copyright owners to control access to their works. Section 1201 makes TDM research on texts and films time consuming and inefficient—and in some cases, impossible—working against the promotion of the progress of knowledge and the useful arts that copyright law has been designed to incentivize. What’s more, Section 1201’s prohibitions force some TDM scholars to focus on works first published before 1926, which are in the public domain. Because authorship was far less diverse then than it is today, focusing TDM on pre-1926 texts privileges white male voices rather than being representative of authors contributing to the commons of knowledge today. For these reasons, our petition and supporting comments ask the Librarian of Congress to grant a new exemption to Section 1201’s anti-circumvention prohibitions that would allow researchers to bypass TPMs on e-books and films for the purpose of conducting TDM research.

Last month, four comments were submitted in opposition to our proposed new exemption, raising concerns about the scope of activities and works that would be covered by the exemption, the intended beneficiaries of the exemption, and security measures for databases of decrypted copies of copyrighted works.

This week, we responded to these comments, explaining that the concerns about the scope of activities and works covered could be addressed by clarifying the bounds of the exemption. We explained the exemption was intended to cover using text and data mining techniques for the purposes of scholarly research and teaching only. With regards to the scope of the works covered, we specified that “literary works,” as used in our petition, would exclude computer programs. Both of these clarifications were made with an aim towards allaying commenters’ concerns about the exemption’s breadth.

We also clarified that the intended beneficiaries of the exemption were “researcher[s] affiliated with a nonprofit library, archive, museum, or institution of higher education[,]” explaining that the exemption’s proponents were not commercial actors, nor were the other intended beneficiaries. Finally, we addressed commenters’ security concerns by explaining that the exemption will require researchers to take “reasonable security measures” to ensure that there is no unauthorized access, noting that the requirement of institutional affiliation will facilitate such security measures.

Next month, we anticipate participating in public hearings hosted by the Copyright Office to consider the merits of the proposed exemptions. We look forward to continuing to work with opposition commenters to address their concerns and with the Copyright Office as it evaluates our petition for this new exemption to facilitate TDM research.

The Librarian of Congress is expected to issue a final decision on the proposed exemption in October 2021. We will keep our members and readers apprised of any updates on our proposed exemption as the process moves forward. We’re grateful to law students from the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley Law School for their work supporting our petition for this new exemption.