THE DIGITAL MILLENIUM COPYRIGHT ACT
In September 1995, the Working Group on Intellectual Property Rights issued a White Paper entitled "Intellectual Property and the National Information Infrastructure." This White Paper represented the Working Group's examination and analysis of intellectual property law, focusing primarily on copyright law and the effectiveness of Title 17 of the United States Code in the context of the National Information Infrastructure. This White Paper was the first step forward in reviewing and rethinking the applicability of intellectual property laws in the digital age.
The White Paper recognized the difficulty the law faces, even intellectual property law, in keeping pace with changes in technology. This is true even for copyright law, which had a major overhaul in 1976, less than twenty years prior to the formation of the Working Group. At the time of the Copyright Act of 1976, special care was taken when drafting the statute so that it would be flexible enough to be applied to future innovations, but technology has outpaced even these forward thinking statutory provisions. By the mid 1990s, the Copyright Act was in need of some significant assistance if it was going to maintain relevance in the digital age, and it was necessary for Congress to step in and fashion the rules necessary to cope with the changing technological landscape.
The Working Group on Intellectual Property predicted that the ease of infringement and the difficulty of detection and enforcement would cause copyright owners to look to technological solutions, in addition to legal solutions, to protect their copyrightable works. But for every technology that can be created to protect information, there is a technology waiting to be created, and which will be created, to counteract the protection provided. With this in mind, the Working Group suggested that Congress make significant changes to the Copyright Act, and provide legal protection for copyright owners wishing to employ technological measures to protect their works.
The suggestions of the Working Group took on new meaning when, in December 1996, a Diplomatic Conference was convened in Geneva, Switzerland under the auspices of the World Intellectual Property Organization ("WIPO"). This conference was called for the purpose of negotiating new multilateral treaties to protect copyrighted material in the digital environment and to provide stronger international protection to performers and producers of phonograms. The conference produced two treaties, the "WIPO Copyright Treaty" and the "WIPO Performances and Phonograms Treaty," which were adopted by consensus by over 150 countries.
In July 1997, the Clinton administration submitted the treaties to the Senate for ratification and submitted proposed implementing legislation to both the House and the Senate. As the treaty implementation bills worked their way through Congress, it became apparent that both bills faced significant opposition from many private and public sector interests, including libraries, institutions of higher learning, consumer electronics and computer product manufacturers, and others. The debate on the treaty implementation legislation highlighted the dual priorities of promoting the continued growth and development of electronic commerce, while at the same time protecting intellectual property rights. Both Congress and the Clinton administration used these international treaties as an excuse for passing a broad, sweeping changes to U.S. copyright laws that were urged by the entertainment industry , despite the fact that such changes to U.S. copyright law were not required by the treaties themselves.
The United States Congress ultimately enacted The Digital Millennium Copyright Act (“DMCA”), which was signed into law on October 28, 1998. The DMCA had as its primary purpose the goal of updating United States copyright laws with an eye toward making them more relevant and flexible given the ever changing digital information climate. The DMCA was divided into five sections, each having a different focus. Title I of the DMCA is the WIPO Copyright and Performance and Phonograms Treaties Implementation Act of 1998. Title II is the Online Copyright Infringement Liability Limitation Act, which creates limitations on the liability of online service providers for copyright infringement. Title III is the Computer Maintenance Competition Assurance Act, which creates an exception for making a copy of a computer program by activating a computer for purposes of maintenance or repair. Title IV contains miscellaneous provisions relating to distance education, the ability of libraries to make ephemeral recordings, webcasting of sound recordings, and the applicability of collective bargaining agreement obligations in the case of transfers of rights in motion pictures. Title V is the Vessel Hull Design Protection Act, which creates a new form of protection for the design of vessel hulls. For more information about the DMCA: