Today, Authors Alliance is thrilled to announce that the Librarian of Congress granted our request for a new exemption to section 1201 of the Digital Millennium Copyright Act (“DMCA”) that will enable text data mining research on e-books and films. Following our petition, testimony, and follow-up meeting with the Copyright Office to discuss the concerns of opponents of the exemption, the Register of Copyrights recommended granting our exemption and the Librarian of Congress agreed to grant it, albeit with some important limitations.
Background
Section 1201 prohibits the circumvention of technical protection measures (“TPMs”) used by rightsholders to control access to their works. In other words, section 1201 prevents individuals from breaking digital locks on copyrighted works, even when they seek to make a fair use of those copyrighted works or engage in other non-infringing activities. But because section 1201’s prohibitions can interfere with fair and socially beneficial uses of copyrighted works, the DMCA also provides for a triennial rulemaking process to grant temporary exemptions to these prohibitions. Authors Alliance has participated in each 1201 rulemaking cycle since our founding, petitioning for exemptions and their renewals to help authors both enjoy their rights and see their creations reach wide audiences. In the latest rulemaking, we submitted a comment petitioning for a new exemption that would allow researchers to bypass TPMs on literary works distributed electronically and films for the purpose of conducting text and data mining (“TDM”) research, joined by the Library Copyright Alliance and the American Association of University Professors. Our petition was accompanied by 14 letters of support from researchers engaging in TDM research on e-books and films who found themselves hampered by 1201’s prohibitions.
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. But the prohibition on bypassing TPMs in section 1201 made 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 is intended to incentivize. Authors Alliance and the other exemption proponents consider TDM research to fall squarely within the ambit of fair use, though the petition’s opponents disagreed with this position.
The Exemption and its Limitations
The new exemption—which will go into effect tomorrow—allows researchers affiliated with academic institutions to circumvent TPMs for the purposes of conducting TDM research on e-books and films. In announcing her recommendation to grant the exemption, Register of Copyrights Shira Perlmutter stated the Copyright Office “recognizes the academic and societal benefits that could result from TDM research and concludes that properly tailored exemptions meet the statutory requirements for adoption.” Because existing alternatives to circumventing TDMs were not adequate to meet the researchers’ needs, the Copyright Office recognized the importance of the exemption for those researchers.
Register Perlmutter’s recommendation was also accompanied by a lengthy discussion of whether TDM research is fair use, resolving the disagreement between the proponents and opponents of the petition to some extent. She stated that TDM research, as described in our petition and with certain limitations, was likely to be a fair use, in large part because it is non-commercial and likely to be transformative. While Authors Alliance is thrilled that our proposed exemption has been granted, enabling socially beneficial TDM research on copyrighted works which was formerly prohibited under 1201, the aforementioned limitations may limit the usability of the exemption for some TDM researchers.
Security Measures
During the hearing and the post-hearing meeting, Authors Alliance participated in lengthy discussions about how the corpora of works should be secured. In the Librarian of Congress’s view, the most important limitation to this exception is a requirement that the academic institution “storing or hosting a corpus of copyrighted works . . . implement either security measures that have been agreed upon by copyright owners and institutions of higher education, or, in the absence of such measures, those measures that the institution uses to keep its own highly confidential information secure.” This seems to represent a compromise position between Authors Alliance’s argument that measures for securing these corpora, while important, should be flexible and tailored to the capabilities of the particular institution and opponents’ argument that the utmost security controls were needed to prevent unauthorized dissemination of the works in the corpora. Authors Alliance had pointed out that prescribing specific security controls, as the exemption’s opponents argued for, could render the exemption unusable for researchers at institutions that were not able to meet these high security standards. Instead, we suggested that the exemption require “reasonable security measures” to secure the corpora. By allowing academic institutions to secure corpora using their own security measures for storing highly confidential information, the recommendation did provide for some flexibility, while still indicating that very strong security controls were needed.
Access to Corpora for Verification Purposes
Register Perlmutter recommended that the researchers should be permitted to “view or listen to the contents of the copyrighted works in the corpus solely for the purpose of verification of the research findings, not for the works’ expressive purposes.” Authors Alliance agreed to this limitation in our post-hearing meeting, pointing out that the requirement that the copyrighted works be lawfully obtained meant that researchers would already have access to the copyrighted works for expressive purposes, and would not need access to the corpora to read or watch the works, but simply to verify their research findings.
Licenses and Ownership
In the recommendation, Register Perlmutter also recommended adding a limitation that “circumvention be permitted only on copies of the copyrighted works that were lawfully acquired and that the institution owns or for which it has a non-time-limited license,” and should not be permitted on works the institution had “rented or borrowed.” This limitation has the potential to complicate the usability of the exemption with regards to TDM research on e-books: because e-books are generally licensed rather than owned, whether the exemption will permit TDM research on a certain e-book will depend on the terms of the license for that e-book.
The Exemption Going Forward
It remains to be seen how the limitations in the exemption will affect researchers’ ability to make use of it. This being said, Authors Alliance views the recommendation as a huge victory for TDM researchers and authors who care about the broad dissemination of their work and contributing to the progress of knowledge. We will continue to update our readers and members as the exemption is implemented and received by the TDM researchers who need it.
Authors Alliance is deeply indebted to the clinical team at the Samuelson Law Technology & Public Policy Clinic at UC Berkeley for their tireless work on our behalf petitioning for this exemption. We applaud their efforts and the dedication of our co-petitioners in making this exemption a reality.