Authors Alliance is pleased to announce that in recent weeks, we have submitted petitions to the Copyright Office requesting that it recommend renewing expanding the existing text data mining exemptions to DMCA liability to make the current legal carve-out that enables text and data mining more flexible, so that researchers can share their corpora of works with other researchers who want to conduct their own text data mining research. On each of these petitions, we were joined by two co-petitioners, the American Association of University Professors and the Library Copyright Alliance. These were short filings—requesting changes and providing brief explanations—and will be the first of many in our efforts to obtain a renewal and expansion of the existing TDM exemptions.
The Digital Millennium Copyright Act (DMCA) includes a provision that forbids people from bypassing technical protection measures on copyrighted works. But it also implements a triennial rulemaking process whereby organizations and individuals can petition for temporary exemptions to this rule. The Office recommends an exemption when its proponents show that they, or those they represent, are “adversely affected in their ability to make noninfringing [fair] uses due to the prohibition on circumventing access controls.” Every three years, petitioners must ask the Office to renew existing exemptions in order for them to continue to apply. Petitioners can also ask the Office to recommend expanding an existing exemption, which requires the same filings and procedure as petitioning for a new exemption.
Back in 2020, during the eighth of these triennial rulemakings, Authors Alliance—along with the Library Copyright Alliance and the American Association of University Professors—petitioned the Copyright Office to create an exemption to DMCA liability that would enable researchers to conduct text and data mining. Text and data mining is a fair use, and the DMCA prohibitions on bypassing DRM and similar technical protection measures made it difficult or even impossible for researchers to conduct text and data mining on in-copyright e-books and films. After a long process which included filing a comment in support of the exemption and an ex parte meeting with the Copyright Office, the Office ultimately recommended that the Librarian of Congress grant our proposed exemption (which she did). The Office also recommended that the exemption be split into two parts, with one exemption addressing literary works distributed electronically, and the other addressing films.
Back in early July, we made our first filings with the Copyright Office in the form of renewal petitions for both exemptions. For this step, proponents of current exemptions simply ask the Copyright Office to renew them for another three year cycle, accompanied by a short explanation of whether and how the exemption is being used and a statement that neither law nor technology has changed such that the exemption is no longer warranted. Other parties are then given an opportunity to respond to or oppose renewal petitions. The Office recommends that exemption proponents who want to expand a current exemption also petition for its renewal—which is just what we did. In our renewal petitions, we explained how researchers are using the exemptions and how neither recent case law nor the continued availability of licensed TDM databases represent changes in the law or technology, making renewal of the TDM exemptions proper and justified. The renewal petitions follow a streamlined process, where they are generally simply granted unless the Office finds there to be “meaningful opposition” to a renewal petition, articulating a change in the law or facts. You can find our renewal petition for the literary works TDM exemption here, and our renewal petition for the film TDM exemption here.
But we also sought to expand the current exemptions, in two petitions submitted a few weeks back. In our expansion petitions, we proposed a simple change that we would like to see made to the current DMCA exemptions for text data mining. In the exemption’s current form, academic researchers can bypass technical protection measures to assemble a corpus on which to conduct TDM research, but they can only share it with other researchers for purposes of “collaboration and verification.” We asked the Office to permit these researchers to share their corpora with other researchers who want to use the corpus to conduct TDM research, but are not direct collaborators. However, this second group of researchers would still have to comply with the various requirements of the exemption, such as complying with security measures. Essentially, we seek to expand the sharing provision of the current exemption while leaving the other provisions intact. This is largely based on feedback we have received from those using the exemption and our understanding of how the regulation can be improved so that their desired noninfringing uses are no longer adversely affected by this limitation. You can find our expansion petition for the literary works TDM exemption here, and our expansion petition for the film TDM exemption here.
The next step in the triennial rulemaking process is the Copyright Office issuing a notice of proposed rulemaking, where it will lay out its plan of action. While we do not have a set timeline for the notice of proposed rulemaking, during the last rulemaking cycle, it happened in mid-October—meaning it is reasonable to expect the Office to issue this notice in the next two months or so. Then, there will be several rounds of comments in support of or in opposition to the proposals. Finally, the Office will issue a final recommendation, and the Librarian of Congress will issue a final rule. While the Librarian of Congress is not legally obligated to adopt the Copyright Office’s recommendations, they traditionally do. Based on last year’s cycle, we can expect a final rule to be issued around October 2024. So we are in for a long wait and a lot of work! We will keep our readers updated as the rulemaking moves forward.