(i) Exemptions Adopted by the Librarian of CongressSection 1201(a)(1) requires the Librarian of Congress, upon recommendation of the
Register of Copyrights and in consultation with the Assistant Secretary of Commerce for
Communications and Information, to conduct a rulemaking^770 during the initial two-year period,
and during each succeeding three-year period, to determine whether certain types of users of
copyrighted works are, or are likely to be, adversely affected by the prohibition in Section
1201(a)(1).^771 The Librarian must publish a list of particular classes of copyrighted works for
which the rulemaking determines that noninfringing uses have been, or are likely to be, adversely
affected, and the prohibitions of Section 1201(a) shall not apply to such users with respect to
such class of works for the ensuing three-year period.
The Exemptions of 2000. On Oct. 27, 2000, the Copyright Office published the first set
of classes of copyrighted works that the Librarian of Congress determined would be exempt from
the anti-circumvention provisions of Section 1201(a)(1), with the exemption to be in effect until
Oct. 28, 2003.^772 Those classes, which were only two in number and very narrowly defined,
were as follows:
- Compilations consisting of lists of websites blocked by filtering software and
applications. The Librarian determined that an exemption was necessary to avoid an adverse
effect on persons who wish to criticize and comment on such lists, because they would not be
able to ascertain which sites are on the lists unless they circumvented encryption protecting the
contents of the lists.^773 - Literary works, including computer programs and databases, protected by access
control mechanisms that fail to permit access because of malfunction, damage or obsoleteness.
The Librarian determined that an exemption was necessary to gain access to literary works
protected by access control mechanisms, such as dongles or other mechanisms, that malfunction
or become obsolete.^774
The Exemptions of 2003. On Oct. 27, 2003, the Copyright Office issued the second
determination of the classes of copyrighted works that the Librarian decided should have an
(^770) As originally passed by Congress, section 1201(a)(1) required that the rulemaking be on the record. However,
th e Intellectual Property and Communications Omnibus Reform Act of 1999, P.L. 106-113, passed by Congress
on Nov. 19, 1999 and signed by the President in late 1999, removed the requirement that the rulemaking be “on
the record.”
(^771) Section 1201(a)(C) provides that in conducting the rulemaking, the Librarian shall examine the availability for
use of copyrighted works; the availability for use of works for nonprofit archival, preservation, and educational
purposes; the impact that the prohibition on the circumvention of technological measures applied to copyrighted
works has on criticism, comment, news reporting, teaching, scholarship, or research; and the effect of
circumvention of technological measures on the market for or value of copyrighted works.
(^772) 65 Fed. Reg. 64556 (Oct. 27, 2000).
(^773) Id. at 64564.
(^774) Id. at 64564-66. For the Copyright Office’s rationale for rejecting an exemption for a host of other proposed
classes of works, see id. at 64566-74.