“the development of electronic commerce and associated technology,” and “the relationship
between existing and emergent technology” and Sections 109 and 117 of the copyright statute.
The report required under Section 104 was issued in August of 2001 and is available online at
http://www.loc.gov/copyright/reports/studies/dmca/dmca_study.html.
In a nutshell, the executive summary of the report concludes, “We are not persuaded that
title I of the DMCA has had a significant effect on the operation of sections 109 and 117 of title
- The adverse effects that section 1201, for example, is alleged to have had on these sections
cannot accurately be ascribed to section 1201. The causal relationship between the problems
identified and section 1201 are currently either minimal or easily attributable to other factors
such as the increasing use of license terms. Accordingly, none of our legislative
recommendations are based on the effects of section 1201 on the operation of sections 109 and
117.”^1462
The report does, however, recommend two legislative changes: (i) that the copyright
statute be amended “to preclude any liability arising from the assertion of a copyright owner’s
reproduction right with respect to temporary buffer copies that are incidental to a licensed digital
transmission of a public performance of a sound recording and any underlying musical work”^1463
and (ii) that Congress “either (1) amend section 109 to ensure that fair use copies are not subject
to the first sale doctrine or (2) create a new archival exemption that provides expressly that
backup copies may not be distributed.”^1464 The recommendation with respect to temporary
buffer copies is discussed further in Section III.E.4(b) below.
(b) Clarification of the Authority of the Copyright OfficeSection 401 of the DMCA clarifies the authority of the Copyright Office. Specifically, it
provides that, in addition to the functions and duties of the Register of Copyrights already
enumerated in the copyright statute, the Register shall perform the following functions: (1)
Advise Congress on national and international issues relating to copyright; (2) Provide
information and assistance to federal departments and agencies and the judiciary on national and
international issues relating to copyright; (3) Participate in meetings of international
intergovernmental organizations and meetings with foreign government officials relating to
copyright; and (4) Conduct studies and programs regarding copyright, including educational
programs conducted cooperatively with foreign intellectual property offices and international
intergovernmental governments.^1465
(^1462) The quoted language is from the opening paragraph of Section III of the Executive Summary of the report. The
Executive Summary may be found at http://www.loc.gov/copyright/reports/studies/dmca/dmca_executive.html.
(^1463) Id. section III.b.2.c.
(^1464) Id. section III.b.3.b.
(^1465) This provision is the outcome of a skirmish that developed between Bruce Lehman, the former Commissioner
of Patents & Trademarks and Mary Beth Peters, the Register of Copyrights. Commissioner Lehman was
pushing for creation of a new position of Under Secretary of Commerce for Intellectual Property Policy, or what
some referred to as an “intellectual property czar.” Under a proposed provision that did not pass Congress, the
duties of the new position would have been to: (1) Promote exports of goods and services of the United States