DMCA exemption victory for documentary filmmakers

Documentary filmmakers everywhere can celebrate, breathe a sigh of relief, and continue exercising their fair use rights after the U.S. Copyright Office and the Librarian of Congress today granted documentary makers a renewed exemption to the Digital Millennium Copyright Act (DMCA), which included an expansion of access to Blu-Ray. You can read the full ruling here. The exemption ruling comes after testimony from Kartemquin's artistic director Gordon Quinn and Kartemquin technical director Jim Morrissette at a hearing at the Copyright Office in June 2015, and submission of a final DMCA Exemption Comment in February 2015 by Jack Lerner of the USC Intellectual Property and Technology Law Clinic and Michael Donaldson of Donaldson & Callif, LLP. on behalf of Kartemquin, the International Documentary Association (IDA), the National Alliance for Media Arts and Culture (NAMAC), and the Indie Caucus. Filmmakers and authors have long held the right to make fair use of copyrighted material for uses like criticism and commentary. But the DMCA, enacted in 1998, made it illegal—and in some cases a crime—to access copyrighted content by breaking technological protection measures like encryption. The result is that the DMCA inadvertently chills fair use and other lawful activities. To address this danger, Congress directed the Librarian of Congress to issue exemptions every three years, after a rulemaking conducted by the Register of Copyrights. This is the third time Gordon, Jim and the team have successfully testified on behalf of all documentary filmmakers to renew the exemption. The new rules allow documentary filmmakers and authors offering film analysis to access encrypted content from DVDs, Blu-ray discs, and digitally transmitted video in order to criticize or comment on that content in their works. The previous version of the exemption did not permit access to Blu-ray and did not as clearly define what constituted digitally transmitted video. However, we regret that the Librarian of Congress did not expand these exemptions to narrative filmmaking, even films depicting historical events, like biopics. This is especially disappointing given the National Telecommunications and Information Administration (NTIA) specifically recommended to the Federal Register that the exemption be applied to these types of films, and we thoroughly addressed all the concerns of the Copyright Office throughout the process. Gordon Quinn stated: "While we are delighted as documentary makers that the DMCA exemption has been expanded to include Blu-Ray, as fair use advocates we are disappointed that the exemptions was not granted for fiction. You cannot lock away people's rights to comment on culture based on whether or not they chose to express themselves through a medium of fiction or nonfiction." Jim Morrissette stated: "With the DMCA exemption now modified to include Blu-Ray discs, the Fair Use clips in our Documentaries can now pass the strict high definition technical standards of PBS, NBC Universal, CNN, and other broadcasters." “This new rule is an important step toward restoring documentary filmmakers’ fair use rights. In the digital age, technological locks present a real threat to freedom of expression. The Librarian’s rule is an important measure to mitigate that harm,” said Jack Lerner, director of the UCI Intellectual Property, Arts, and Technology Clinic. For more background, please visit: http://www.documentary.org/advocacy/dmca-exemption.
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