Eighth Triennial 1201 Rulemaking Begins

June 6, 2020

It seems like only yesterday that the Copyright Office announced the seventh triennial 1201 rulemaking (or maybe it was only yesterday that I finally finished reading the 340+ pages of the Register’s recommendation), but here we are again: the Office has just announced the commencement of the eighth proceeding. The rulemaking, under 17 U.S.C. § 1201, aims to identify particular classes of works for which users are adversely affected in their ability to make non-infringing uses due to the prohibition on circumvention of access control technologies.

As I describe more fully in Chapter 5 of my book, the proceeding has evolved over the years form a relatively banal, esoteric administrative exercise into a more closely watched and sometimes hotly contested battle. (It was the fifth triennial rulemaking during which the Copyright Office determined — and justifiably so — that there was no longer a need for an exemption to allow consumers to “unlock” their cell phones).

The last rulemaking cycle was the first during which the Office used its streamlined procedure for “renewals” of existing exemptions, recognizing that while the statute does not permit the Office to simply “renew” previously granted exemptions, it could accelerate the way it adjudicates requests for those exemptions to continue. That approach apparently worked well, as the Office is doing it again during this cycle.

Here’s the full announcement from the Copyright Office:

The Copyright Office has published a notice of inquiry and request for petitions initiating the eighth triennial rulemaking proceeding under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 1201. Section 1201 provides that the Librarian of Congress, upon the recommendation of the Register of Copyrights, may adopt temporary exemptions to the DMCA’s prohibition against circumvention of technological measures that control access to copyrighted works. The ultimate goal of the proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be in the next three years, adversely affected in their ability to make noninfringing uses due to the prohibition on circumventing access controls. When such classes are identified, the Librarian promulgates regulations exempting the classes from the prohibition for the succeeding three-year period.

For this proceeding, the Office is again using a streamlined procedure for the renewal of exemptions that were granted during the seventh triennial rulemaking. If renewed, those current exemptions would remain in force for an additional three-year period (October 2021–October 2024).

The notice of inquiry requests that interested parties submit written petitions for renewal of current exemptions by 11:59 p.m. Eastern Time on July 22, 2020, written comments in response to any petitions for renewal by 11:59 p.m. Eastern Time on September 8, 2020, and written petitions proposing new exemptions by 11:59 p.m. Eastern Time on September 8, 2020.

The Office will be offering a public webinar to discuss the 1201 rulemaking process on June 23, 2020, at 2 p.m. Eastern Time. Registration is required and available here

For more information, please visit https://www.copyright.gov/1201/2021/.