Copyright Office Weighs In On Dmca

The U.S. Copyright Office has sided with Webcasters on several important issues in its long-awaited report to Congress on recommended changes to the 1998 Digital Millennium Copyright Act.

The report, released Aug. 29, follows a hearing last fall on whether to create a "digital" first-sale doctrine, whether to create an exemption for certain temporary incidental copies of creative works, and whether to expand the archival copying exemption now used for computer programs.

In its report, the Copyright Office disagreed with Webcasters and others who had asked for the adoption of a digital first-sale doctrine. The report found that such an extension of the law could hurt the market for the original, because "physical copies degrade with time; digital information does not."

The report, however, agreed with Webcasters about not endorsing demands by music publishers and performing-rights societies to be paid public-performance royalties for the technical "performance" of an underlying musical work that occurs in the course of transmitting it from a provider's server to a consumer's computer.

The report states, "Although we recognize that it is an unsettled point of law that is subject to debate, we do not endorse the proposition that a digital download constitutes a public performance even when no contemporaneous performance takes place."

The report also sided with Webcasters by recommending that temporary, incidental buffer copies made in RAM in the course of rendering a digital music stream be made legal as fair use, as they have no commercial economic significance. It also asked that Congress amend the archive exemption to allow for backups of lawful digital copies of material.

John Potter, president of the Digital Media Assn. (DiMA), says, "We're really, really pleased. The report validates policy and legal points that DiMA has been making since we were formed. It should be noted that the recommendations are parts of the pending Boucher-Cannon Music Online Competition Act [MOCA]."

In a written statement, BMI disagreed with the report's decision that a technical performance requires no copyright royalty: "We believe that all transmissions, including downloads, are clearly public performances and should be compensated."

Representatives from ASCAP, the National Music Publishers' Assn., and the Recording Industry Assn. of America said they were still studying the 166-page report.

When Congress returns next week, the House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property is expected to schedule a hearing on the Boucher-Cannon MOCA bill.