Copyright & Digital Millennium Copyright Act 2021 Analysis

Copyright and Digital Millennium Copyright Act

Copyright & the Digital Millennium Copyright Act (“DMCA”)

The Digital Millennium Copyright Act is the main law addressing some of the unique issues presented by advances in digital information technology. Read on to find out more about copyrights in general, how the Digital Millennium Copyright Act has affected technology, and if changes are in store.

Below is information adapted from a presentation made by Carmel & Naccasha Attorney, Joe Benson, on February 3, 2021.

What is a Copyright?

A copyright is:

  • Based on the United States Article I, Section 8, of the U.S. Constitution reading, “The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”
  • Copyright Act of 1976: The federal statute governing copyright protection in the US, codified in Title 17 of the US Code. Subject to limited exceptions, the Copyright Act preempts state law.

What is Protected Under Copyright?

17 U.S.C.A. § 102 :(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

  • literary works;
  • musical works, including any accompanying words;
  • dramatic works, including any accompanying music;
  • pantomimes and choreographic works;
  • pictorial, graphic, and sculptural works;
  • motion pictures and other audiovisual works;
  • sound recordings;
  • and architectural works.

What is NOT Protected Under Copyright?

  • Ideas
  • Facts
  • Data
  • Concepts
  • Systems
  • Methods
  • Principles
  • Discoveries
  • Names, Titles, Short Phrases

Digital Millennium Copyright Act

With the advent of the internet, copyright laws were modified to include protections for this new technology. In 1998, Congress passed the Digital Millennium Copyright Act (“DMCA”) to adapt various aspects of the copyright law to address some of the unique issues presented by advances in digital information technology.

Among other things, the DMCA provides:

  • mechanisms for limiting liability for digital platforms (e.g. YouTube) in connection with the unauthorized use of copyrighted material by users, including the unauthorized posting and transmission of protected material;
  • four “safe harbor” categories are established through which a platform can qualify for immunity from secondary liability in connection with copyright infringement
    • Transitory digital network communications;
    • System caching;
    • Information residing on systems or networks at direction of users; and
    • Information location tools.
  • Where a platform’s service activity fits within one of the Act’s four safe harbors, it will qualify for safe harbor immunity provided that:
    • it has adopted and informed its subscribers of a policy prohibiting the use of its service for copyright infringement activities, and
    • its policy includes appropriate mechanisms for dealing with “repeat infringers”. See Subsection 512(i)2.

Potential Changes to the Digital Millennium Copyright Act

On May 21, 2020, the U.S. Copyright Office released a 200-page report suggesting changes to the DMCA:

  • Analysis of if the DMCA’s safe harbor provisions are still a proper balance of the needs of online service providers to that of copyright holders;
  • Technology has advanced significantly since the DMCA was put into place 22 years ago; and
  • Suggested 10 potential items for Congress to consider legislating.

Contact Legal Counsel 

THE INFORMATION PROVIDED HEREIN DOES NOT, AND IS NOT INTENDED TO, CONSTITUTE LEGAL ADVICE; INSTEAD ALL INFORMATION, CONTENT, AND MATERIALS ARE FOR GENERAL INFORMATIONAL PURPOSES ONLY.

Contact Attorney Joe Benson for legal issues related to copyright.

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