The 1998 Digital Millennium Copyright Act (“DMCA”) has some new exemptions, under a final rule published by the United States Copyright Office in the Federal Register that went into effect on October 28.

The Act provides that, upon the recommendation of the Register of Copyrights (which is a division of the Library of Congress), the Librarian of Congress may designate certain classes of works as exempt from the prohibition against circumvention of technological measures that control access to copyrighted works.

The new Rule sets out several such exempted classes, including:

  • Motion pictures “where circumvention is undertaken solely in order to make use of short portions of the motion pictures for the purpose of criticism or comment,” such as for documentaries, noncommercial videos, film analyses, and educational purposes;
  • Motion pictures and other audiovisual works for the purpose of developing captions and descriptive audio for the deaf or partially deaf, blind, or visually impaired; and
  • Electronically distributed literary works that are protected by technological measures that block read-aloud functionality.

The new Rule is considered an advance by some, such as those who produce documentaries or work with those producers.  Persons with certain physical limitations appeared to have fared well.

The Register considered several other proposed classes for exemption, but chose not to recommend them.  The requested exemptions which were not accepted included:

  • A request to exempt the circumvention of literary works in the public domain to enable access to works that are digitally distributed;
  • A request to permit the circumvention of access controls on video game console computer code so that the consoles could be used with non-vendor-approved software that is lawfully acquired (a dispute between video game manufacturers and so-called console “jail-breakers”); and
  • A request to permit “space shifting” (i.e., “the copying of complete works to permit personal use on alternative devices”).  In addressing this request, the Register noted that “the law does not guarantee access to copyrighted material in a user’s preferred format or technique.”

Links to the Register’s Recommendation, the Federal Register Notice announcing the exemptions, and the record of the 2012 proceeding are available here.