If Congressmen Rich Boucher (D-Va) and John Dolittle (R-Calif) succeed in their latest legislative initiative, the copyright balance in the United States may be about to tip back slightly in favour of consumers of intellectual property and users of digital media. The Freedom and Innovation Revitalizing US Entrepreneurship (FAIR USE) Act, introduced into the House of Representatives in February, is intended to remove some restrictions from the use of digital media content purchased by consumers, and to protect hardware and software makers from vicarious liability. These moves come after years of criticism of the effects of the Digital Millennium Copyright Act (DMCA). In particular, consumer groups and electronics manufacturers have argued that the protections provided by the DMCA to copyright owners (eg, movie studios and record labels) have been overly restrictive. Congressman Boucher has stated:

"The Digital Millennium Copyright Act dramatically tilted the copyright balance toward complete copyright protection at the expense of the public's right to fair use […] Without a change in the law, individuals will be less willing to purchase digital media if their use of the media within the home is severely circumscribed and the manufacturers of equipment and software that enables circumvention for legitimate purposes will be reluctant to introduce the products into the market."

The proposed legislation would:

  • allow users to copy digital material they own;
  • grant exemptions to the DMCA protections to allow making copies for personal purposes as well as for reviews, news reporting and educational use; and
  • ensure that manufacturers of electronic devices and digital media service providers are not responsible for what customers do with their devices and services.

The Consumer Electronics Association, a trade group representing electronics manufacturers, and consumer groups including the Electronic Frontier Foundation support the FAIR USE Act. However, the bill is strongly opposed by the Recording Industry Association of America, which fears the potential impact of the new legislation because "[t]he difference between hacking done for non-infringing purposes and hacking done to steal is impossible to determine and enforce".

It will be interesting to see whether the public's increased familiarity with and use of digital media since the introduction of the DMCA in 1998 will now translate into a shift in the United States' copyright balance in favour of consumers and users.

This article first appeared in World Copyright Law Report. For further information please go to  www.worldcopyrightlawreport.com