A UC Irvine law school clinic is being credited with playing a role in the loosening of federal copyright law that could have previously led to authors and documentary filmmakers being punished as criminals.
The Librarian of Congress weeks ago announced two exemptions to the Digital Millennium Copyright Act (DMCA) that the UCI Intellectual Property, Arts, and Technology (IPAT) Clinic sought on behalf of a large coalition of filmmakers and authors. The client roster includes members of the International Documentary Association, Kartemquin Films, Authors Alliance, the American Association of University Professors and Film Independent.
For decades, filmmakers and authors offering film analysis have had access to copyrighted films and videos–but getting to encrypted content on DVDs, Blu-ray discs or digitally transmitted video was problematic legally. That's because the DMCA, which was enacted in 1998, made it illegal–and in some cases, a crime–to access copyrighted content by breaking technological protection measures like encryption.
"Authors and filmmakers alike need to access copyrighted content in order to make fair use, but the DMCA had been unfairly restricting their ability to do so," explains Jack Lerner, director of UCI's IPAT Clinic.
Documentary filmmakers could legally access encrypted DVD and digitally transmitted video, but not Blu-ray, while all three formats were off limits to authors.
The IPAT Clinic students, whose mission is to support innovation and creative expression in the digital age, spent a year alongside co-counsel Donaldson N Callif LLP advocating for DMCA exemptions in the U.S. Copyright Office through petitions, lengthy comments, reply comments and participation in federal hearings held in Los Angeles and Washington, D.C.
The new rules announced by the Librarian of Congress earlier this fall allow documentary filmmakers access to encrypted Blu-ray content while all formats are now available legally to authors so they can criticize or comment on the content in their own works. This is especially welcome given the burgeoning new media of multimedia e-books.
"This new exemption goes a long way toward rectifying the problem, because it allows our clients to access Blu-ray in addition to DVD and other formats," Lerner said. "We are glad that the Librarian of Congress recognized that in today's technological environment, creators need to access high-definition material in order to make fair use."
"The new ruling protects and enhances important fair use rights for documentary filmmakers, improving their access to the high-definition source material that modern broadcasters and distributors demand," notes UCI Law student Aaron Benmark. "Working with a national coalition of filmmakers to protect and expand fair use rights for filmmakers has been a great pleasure and honor."
But the work of the legal teams is not done because they would also like to see the exemptions extended to narrative filmmakers .
"We are confident that in future proceedings, the Librarian will recognize that all filmmakers, not just documentarians, make fair use," said Christopher Perez of Donaldson N Callif LLP.
The IPAT Clinic also wants the exemptions extended to authors who write about more than just film analysis. Because technology changes rapidly, the Librarian of Congress and U.S. Copyright Office consider making exemptions every three years.
"We hope that in the next triennial proceedings, the Copyright Office will expand the scope of this exemption beyond film analysis, because authors make fair use in countless different contexts, and many of them are seeking to do so in e-books," observed UCI Law student Lauren A. Wong, who worked on the comment proposing the exemption alongside the Samuelson-Glushko Technology Law N Policy Clinic at the University of Colorado.
Bobette Buster, an author, filmmaker and USC School of Cinematic Arts guest lecturer who testified in support of the exemption at hearings in Washington, D.C., praised the UCI School of Law students.
"Working with the students enrolled in the UCI IPAT Clinic was a fantastic experience for me," she said. "I was so impressed with how knowledgeable the students were, and I learned a tremendous amount. I felt very well informed, and in excellent hands."