Climate change, human conflict, and natural disasters present risks to human lives and health, as well as to collections of cultural heritage materials. To future-proof these valuable collections in anticipation of loss through catastrophic events, as well as through normal deterioration, libraries and archives need to circumvent digital locks on works in their collections for the purpose of preserving them.
The US Copyright Office agrees: in its recent notice of proposed rulemaking, the office announced its intention to renew an exemption allowing eligible libraries, archives, and museums to break digital locks on DVDs and Blu-ray discs in their collections when creating preservation or replacement copies of motion pictures, including television shows and videos. The office granted this exemption for the first time in 2021; the current rulemaking cycle is the first time the exemption has been up for renewal.
As part of the ongoing Digital Millennium Copyright Act (DMCA) triennial rulemaking, the Library Copyright Alliance (LCA) petitioned the Copyright Office to renew this exemption, providing testimony that ‘‘[c]ultural heritage institutions across the country have relied on the exemption…to make preservation and replacement copies of the motion pictures in their collections stored on DVDs and Blu-ray discs,’’ as many motion pictures in the collections ‘‘are unavailable for purchase or streaming’’ and the discs ‘‘continue to deteriorate.’’
LCA is grateful that this exemption provides libraries, archives, and museums with certainty that breaking digital locks in order to preserve motion pictures in their collections does not violate Section 1201 of the DMCA. But licenses for digital scholarly works and cultural heritage materials may still present a barrier if they prohibit preservation, fair use, or circumventing technical protection measures.
Congressional intervention may be necessary to clarify that exceptions and limitations provided in the US Copyright Act, or through the Section 1201 rulemaking, prevail over license terms that are inconsistent with those exemptions. For instance, the US Copyright Office has proposed model language to state that libraries, archives, and museums will not be liable for copyright infringement if they make preservation copies of works covered by nonnegotiable contract terms prohibiting such activities. The US Copyright Act could also be amended to provide that such contract terms are not enforceable.
About the Library Copyright Alliance
The Library Copyright Alliance (LCA) addresses copyright issues that affect libraries and their users to foster global access to and fair use of information for creativity, research, and education. LCA consists of two major library associations—the American Library Association and the Association of Research Libraries. These two associations collectively represent over 300,000 information professionals and thousands of libraries of all kinds throughout the United States and Canada.
