On March 3, 2016, KEI filed a comment with the U.S. Copyright Office in Docket No. 2015-8, regarding 17 U.S.C. § 1201.
The comment made specific recommendations regarding changes to the rulemaking procedure, the anti-trafficking provisions, and permanent exemptions, and also suggested requiring a registration and application process, as well as payment of a fee, for the DRM/TPM seeking legal protection under the law.
Changes recommended for the rulemaking procedure included amendments that would provide (1) presumptive renewal of previously granted exemptions, (2) a review process that mandated a totality of the evidence rather than de novo, and (3) a removal of the sunsetting provisions which currently force granted exemptions to expire after only three years.
KEI also called for amendments that would extend exemptions to the general prohibition of circumvention on technology protection measures to both of the antitrafficking provisions: 1201(a)(2) and 1201(b), in order to ensure that § 1201 strikes a balance between the rights of rightsholders and the larger public interest.
Additionally, KEI commented that permanent exemptions should be rewritten to enable broader use of noninfringing circumvention by the groups mentioned in 1201(d)(j), and called for a permanent exemption for the blind or visually impaired should be added in compliance with the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled (the Marrakesh Treaty for the Blind).
Lastly, KEI noted that a process to require registration of TPMs/DRMs, which would include application and payment of fees, would be a welcome development.
KEI is grateful for the assistance of Gina Colarusso, 2L at American University Washington College of Law, in the preparation of the comment.