Digital Millennium Copyright Act of 1998
The Digital Millennium Copyright Act (DMCA) came into force on October 28th, 1998, after it was enacted by Congress and signed into law by President Bill Clinton, who was the president of the United States at the time (Schwabach 77). The Digital Millennium Copyright Act consists of five different titles, out of which four deal specifically with copyright issues. The Act puts into action two treaties of the World Intellectual Property Organization (WIPO) created in 1996. The two treaties are the WIPO Copyright Treaty and the WIPO Performances and Phonograms treaty.
Title I of the DMCA was developed in order to get the United States to comply with the two WIPO treaties. Apparently, Title I has created controversies because of “its prohibition of the circumvention of the copy–protection measures” (Schwabach 77). Title II is the Online Copyright Infringement Liability Limitation Act and requires every provider of online services to be responsible for any copies made while handling information or offering search services. Considering that copying of information cannot be avoided, Title II offers protection for online service providers. The protection is, however, only valid as long as the service providers act in accordance with set rules and regulations. Title III of the DMCA was designed to guard against copyright infringement during the maintenance and repair of computer systems.
The intention of Title IV of the Act was to address issues that included the functions of the Copyright Office, among others. Title V of the Act addresses the protection of specific original designs belonging to individuals or corporate organizations. The titles are discussed again later. The Digital Millennium Copyright Act has been singled out as one of the most controversial developments in the recent past. Apparently, Congress has been working hard to modify the DMCA and ensure that it is as friendly as possible to users.
Digital Millennium Copyright Act and the Doctrine of Fair Use
Based on a study by Curtis (163), fair use is considered to be a defense for the infringement of copyright. Ostensibly, the doctrine of fair use permits copying of copyrighted information to a certain limit without requiring the owners to express permission. Section 107 of the DMCA suggests that “fair use of a copyrighted work for purposes such as criticisms, comment, news reporting, teaching, scholarship, or research is not an infringement of copyright” (Curtis 163).
Section 107 of the Act also advises on how to interpret and apply the doctrine of fair use. Several controversies have resulted from the use of DMCA. Based on its effect on the doctrine of fair use, some people tend to wonder whether the DMCA is actually meeting its objective. Concerns have been raised as to whether the DMCA is an unconstitutional infringement upon the First Amendment. Citing the various challenges of the First Amendment, it is alleged that the DMCA violates the application of the amendment by infringing its rights to third parties.
Despite the issues discussed above, it has been noted that measuring the exact effect of the DMCA on the doctrine of fair use is not easy. Originally, this was complicated by the fact that there was no precedence regarding copyright law in the United States. Since it is generally easy to copy and transmit digital information across the world, owners of copyrighted materials may be discouraged from making their content available digitally. It is thus imperative for the government to ensure that strict measures are in place to safeguard the interests of individuals as well as corporate organizations.
Title I: WIPO Treaties Implementation
Title I is the first division of the DMCA and deals with the implementation of two WIPO treaties established in 1996. The implementation of the treaties is accomplished by making sure that specific amendments to the American law are done in such a way that they link to the two treaties.
Title I further developed two new preventions or prohibitions within the Copyright Act. One of the preventions deals with the problem of working around the various technological measures that are put in place by copyright owners in order to safeguard their information. Often, culprits are able to gain access to copyrighted information using illegal means. The other is meant to prevent individuals or corporate organizations from tampering with copyright information. Title I also “adds civil remedies and criminal penalties for violating the prohibitions” (Reynolds 242). Suspected offenders are thus dealt with through a legal process.
In order to implement the 1996 WIPO treaties, the United States was compelled to have its laws updated in line with the requirements of the treaties. To an extent, the amendments were meant to help in recapturing many foreign works that had been taken up by American citizens. The amendments were done through deletions, additions, and by providing definitions where needed. Apparently, Title I of the Act also outlaws the devices that were designed to support digital piracy. By providing protection against this form of piracy and opening up the way for ratification of the WIPO treaties, the title has been able to protect the interests of American creative industries, including publishing, movie making, and music composition. Records and software development industries also protected by the requirements of Title I of the DMCA.
Title II: Online Copyright Infringement Liability Limitation
One of the greatest controversies regarding the WIPO treaties was “the potential liability of online service and access providers (OSPs) to infringe activities of their customers” (Martin 139). Arguably, the original bills did not deal with copyright issues effectively. The treaties themselves, for example, had loopholes, and hence issues involving copyright infringements were left for judges to decide. The concerns raised by online service providers were later resolved through negotiations and an agreement reached among the various stakeholders. The agreement eventually formed a strong foundation for Title II of the Digital Millennium Copyright Act.
Title II amends Chapter 5 of the Copyright Act through the addition of a new section that relates to the limitations on the overall liability of those who offer online services. The title thus facilitates protection from copyright infringement liability for those who are dedicated to offering online services. However, it only protects online service providers who carry out their activities responsibly. Without a doubt, the provisions of the title are beneficial to dedicate online service providers such as Google, Yahoo, educational institutions, and telecommunication service providers.
Title II of the Act includes a provision that requires the Copyright Office to undertake a comprehensive look at the liability of schools as well as universities for the actions of their students and faculty members who may use available network resources in an irresponsible manner. The Copyright Office is expected to consider issues such as the determination of the contribution of universities and schools for any acts of infringements by members of the faculty, administrative employees, and students. Certainly, the limitations on liability are meant to benefit individuals or corporate organizations that participate in the economy as online service providers.
Title III, IV, and V
Title III of the Digital Millennium Copyright Act provides exemptions for computer maintenance and repair. The title amends section 117 of the copyright law to overrule a case that held that if the software was licensed and a service company came to maintain the computer, by turning the computer on, the party servicing the computer was creating an illegal copy of the program in the memory of the computer. Title III was thus designed to give service providers the liberty copy programs during repair or maintenance activities. Apparently, the section does not apply to software “to the extent that the exemption does not apply if the copy is made when the software is not necessary for the machine to be activated” (Drake 912).
Title IV of the Digital Millennium Copyright Act makes amendments to various parts of the copyright law in order to address issues that are related to distance education and libraries, among others. Ostensibly, Title IV benefits a wide range of users, including authors, universities, and computer manufacturers.
Title V of the DMCA, which is also referred to as the “Vessel Hull Design Protection Act” (Drake 913), is meant to protect specific designs for years. The title, however, includes exemptions for educational uses and liability for resellers in the event that no notice of protection is available.
Works Cited
Curtis, George. The Law of Cybercrimes and their Investigations. Boca Raton, FL. CRC Press, 2011. Print.
Drake, Miriam. Encyclopedia of Library and Information Science. Boca Raton, FL. CRC Press, 2003. Print.
Martin, John. Copyright: Current Issues and Laws. New York: Nova Publishers, 2002. Print.
Reynolds, George. Ethics in Information Technology. Boston, MA: Cengage Learning, 2011. Print.
Schwabach, Aaron. Internet and the Law: Technology, Society, and Compromises: Technology, Society, and Compromises. Santa Barbara, CA: ABC-CLIO, 2014. Print.