On October 27, 2021, the Librarian of Congress issued new exemptions to the prohibition on the circumvention of technological protection measures set forth in the 17 U.S.C. 1201. Several of these exemptions adopted in the triennial section 1201 rulemaking explicitly support research activities. Moreover, the 350-page recommendation of the Register of Copyright, on which the Librarian based the exemptions, provided a detailed analysis of the lawfulness of the underlying research activity necessitating the exemption. The National Telecommunications and Information Administration generally concurred with the Register’s recommendations. The exemptions and their supporting documents reflect the broad right to research in current U.S. copyright law.

Text and Data-Mining

The Register’s recommendation found that the ingestion of entire literary works and motion pictures for the purpose of engaging in noncommercial text and data-mining constitute a fair use under prevailing case law. On the basis of this recommendation, the Librarian granted an exemption to researchers affiliated with nonprofit institutions of higher education to deploy text and data mining techniques on a corpus of motion pictures or literary works for the purpose of scholarly research and teaching. The researcher can view the works in the corpus solely for the purpose of verification of research findings. The institution must use effective security measures to prevent further dissemination or downloading of the works in the corpus.

Preservation

Preservation of copyrighted works is essential to assure their availability to researchers. The Register found that 17 U.S.C. and section 108 permitted libraries, and museum to reproduce motion pictures in order to preserve them. On this basis, the Librarian granted an exemption permitting to libraries, archives, and museums to circumvent the technological protections on DVDs in their collections for the purpose of preserving or replacing audiovisual works stored on those discs. An institution can engage in this preservation activity only after determining that an unused and undamaged replacement copy cannot be obtained at a fair price, and can provide access to the copy only on the institution’s premises.

Additionally, the Librarian expanded the existing exemption for the preservation of software by libraries, archives, and museums to permit those institutions to provide researchers off-premises access to the preserved software. The Librarian reached this conclusion after the Register found that fair use permitted off-premises access to preserved software.

Disability Services Offices

The Librarian expanded the existing exemption for disability services offices at educational institutions: to circumvent to caption motion pictures at the request of faculty and staff (in addition to students); to reuse previously remediated materials; to engage in proactive remediation; and to remediate motion pictures with captions with significant errors. The Librarian made these modifications after the Register found that these activities likely would all constitute fair. These modifications will significantly enhance the ability of faculty and students with disabilities to engage in research activities.

Software Security Research

Researchers proposed eliminating several of the limitations contained in the existing exemption for conducting good faith security research on software. The Librarian agreed to one significant modification: the exemption will no longer be contingent on adherence to other laws, such as the Computer Fraud and Abuse Act. At the same time, the modified exemption makes clear that it does not provide a safe harbor from liability for violating other laws. The modification will remove some of the uncertainty about the scope of the exemption that chilled the activity of security researchers.

Repair

The Librarian broadened the exemption to repair software-enabled devices designed to for use by consumers, as well as medical devices, land vehicles, and marine vessels. The diagnosis, maintenance, and repair permitted by the exemption would invariably require and rely upon research upon the software operating the device.

In addition to these new and modified exemptions, the Librarian renewed all the existing exemptions, including those that permit circumvention of the technological protections on motion pictures for educational purposes.

Although the exemptions acknowledge the importance and legitimacy of research activities, their

enormous complexity reflects the flaws in the underlying section 1201 and the need for Congress to amend it, if not eliminate it.