C&RL News September 2010  442

Librarian’s order advances fair use in 
higher education
by Carrie Russell, director, Program on Public 
Access to Information for ALA’s Office for Infor-
mation Technology Policy

Finally, some good news about fair use in higher 
education that is actually related to that copy-
right amendment we love to hate—the Digital 
Millennium Copyright Act (DMCA). 

The DMCA was the first copyright amend-
ment that established that user rights to digital 
information would be limited compared to 
rights to analog information. In the digital 
environment, where licensing can usurp user 
exceptions, “guilty until proven innocent” is 
the new norm—essentially one must have prior 
permission to access and use digital works, or 
abide by some pre-requisites before exercising 
a user right (consider the TEACH Act’s numer-
ous prerequisites). 

Fortunately, Congress recognized that digital 
controls that protect access to digital works may 
be overkill, negatively affecting one’s ability to 
exercise fair use. It did this by legislating that ev-
ery three years, the U.S. Copyright Office in con-
sultation with the National Telecommunications 
and Information Administration, must conduct a 
“rulemaking” to check if noninfringing uses of 
protected works were barred by technological 
protection measures employed by rights hold-
ers. If so, the Copyright Office recommends to 
the Librarian of Congress (who makes the final 
determination), classes of works that should be 
exempt from the anti-circumvention provision 
for a three-year period. In plain language, users 
can break encryption or other technologies for 
these particular classes of works without running 
afoul of the law. 

This year, seven classes of works are exempt, 
including the right to circumvent e-book pro-
tection schemes that prevent the text-to-speech 
functionality, of great importance to people 

with print disabilities. The exemption of most 
importance to higher education involves DVDs 
(including both film and television content) pro-
tected by Content Scrambling System (CSS). For 
the next three years, higher educational faculty 
in all disciplines can break the CSS in order to 
create film clip compilations for criticism or 
comment, including performance for teaching 
purposes. Previously, only faculty teaching film 
or media studies could exercise this exemption.

In its filing with the Copyright Office, the 
Library Copyright Alliance (LCA), of which ACRL 
is a member, provided evidence that faculty in 
all disciplines use film clips for commentary and 
criticism. LCA collected hundreds of examples 
of this by asking media and other librarians to 
gather actual occasions when faculty did or 
wanted to use compilation clips. The Copy-
right Office said that these uses were fair uses, 
blocked by technological protection measures.

In addition, the Librarian of Congress ex-
tended this exemption to film and media studies 
students, to documentary filmmakers, and to 
“vidders” who create noncommercial, transfor-
mative videos for platforms like YouTube.  The 
exemption does not specifically apply to teachers 
or students in the K–12 environment, because 
according to the Librarian’s rule, not enough 
evidence was presented to justify the need for 
high-quality clips in elementary and secondary 
education. On a bright note, the rule concludes 
that screen capture software can be used by any-
one to create clips, signaling that the Copyright 
Office does not deem screen capture software a 
circumvention tool, a clarification of importance 
since screen capture is so widely used. 

Another surprise exemption proposed by the 
Electronic Frontier Foundation that drew great 
media attention was “jailbreaking” smartphones 
(such as the iPhone) allowing owners of cell 
phones to circumvent software that prevents 
them from using third-party smartphone ap-
plications. 

To read the full report from the Librarian of 
Congress and LCA testimony and filings, see 
www.copyright.gov/1201/. 

Jenni Terry is press officer at ALA’s Washington Office, 
e-mail: jterry@alawash.org

W a s h i n g t o n  H o t l i n eJenni Terry

- Program on Public Access to Information for ALA’s Office for Information 
Technology Policy