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Register's Report on temporary copies and software - Copyright Corner - temporary copies and reproduction of computer programs under Millennium Copyright Act - Brief Article - Column

Information Outlook, Feb, 2002 by Laura Gasaway

Last month's column addressed the first sale portion of the recently issued Register's Report on Section 104 of the Digital Millennium Copyright Act (DMCA). (1) This column focuses on the other two issues raised in the report--temporary copies and the reproduction of computer programs under Section 117 of the Copyright Act. These issues are complex because the very nature of the computer is that it makes copies whenever a digital work is accessed. This may affect the copyright holder's exclusive right of reproduction.

Buffer Copies

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Familiar activities performed on a computer result in a copy being reproduced and stored in random access memory (RAM). The copyright question is whether RAM copies violate the copyright holder's exclusive right of reproduction. Witnesses testified before the Copyright Office in November 2000 that buffer copies were a necessary incident of audio streaming on the Internet. Webcasters expressed considerable concern over the uncertain status of buffer copies at present, given potential liability for both performance and reproduction royalties.

The Register's Report recognized that a strong fair use case could be made for buffer copies that result from streaming. On the other hand, the nature of fair use and the fact that its use as a defense to copyright infringement requires a case-by-case determination makes it unlikely that an organization can rely on fair use in making business decisions prior to an infringement claim. The report recommends legislation to preclude liability for temporary buffer copies but only for those copies that are incidental to a licensed digital transmission of a public performance of a sound recoding and any underlying musical work. Presumably, audio streaming (2) done by a library would not produce exempted incidental copies since library streaming often is not a licensed transmissions but is more likely to be a part of library e-reserves or the like.

One criticism of the Register's Report is that it squandered an opportunity to reassess the treatment of temporary copies of digital works made in computer memory and to restore the original balance the 1976 Act. Initially, temporary copies were not considered to be "fixed" and therefore were not thought to be infringing copies, but this seems to have changed over time.

Backup Copies of Digital Works

Section 117 of the Copyright Act entitled "Limitation on Exclusive Rights: Computer Programs" permits the owner of a copy of a program to make another copy of that program in two instances. First, the owner of a copy may make another copy of that program when it is an essential step to utilize the program in conjunction with a machine. An example is loading the program onto the computer's hard drive, which makes a copy. However, in order for the computer to use the program, it must be placed on the hard drive. The second instance permits the owner of a copy of a program to make an archival copy as a backup.

The DMCA amended Section 117 to allow the owner or a lessee of a machine to make a temporary copy of a program if that copy is produced when the computer is activated for the purpose of maintaining or repairing the machine.

The Register's Report points out that the Section 117 archival exemption applies only to computer programs and not to making backup copies of other types of digital works. While other digital materials are just as vulnerable as computer programs, the report states that no evidence was presented of actual harm due to the inability to make a backup copy under the statute.

The report suggests that Congress should amend Section 117 to make it clear that the right an owner of a copy of a computer program has to make an archival copy does not permit redistribution of these legally made backup copies. In the alternative, the report recommends that "fair use" copies, which might include backup copies of computer programs, should be barred for redistribution.

Because the Copyright Office saw no evidence of current harm, it recommended no additional amendments to the statute. Apparently, libraries will have to suffer and be able to demonstrate considerable actual harm to the access that it can provide to digital works for its users before any overhaul of the statute will be recommended. The inability to make a backup copy of digital works other than software certainly is a primary concern for libraries.

(1.) U.S. Copyright Office, DMCA Section 104 Report, August 2001. See http://www.loc.gov/copyfright/reports/sec-104-report.pdf.> (2.) Streaming technology normally does not permit copies to be made but there are some methods of doing so. It is these copies that would not be covered for libraries.