Response on Voluntary Technical Measures & Standard Technical Measures Inquiries

From the U.S. Copyright Office

As of December 20, 2022, the U.S. Copyright Office has published two letters outlining the results of its yearlong public consultations on voluntary technical measures and on standard technical measures (STMs) as defined in section 512 of Title 17. The letters were written in response to requests from Senators Patrick Leahy and Thom Tillis, Chair and Ranking Member of the Senate Judiciary Committee’s Subcommittee on Intellectual Property.

Voluntary Technical Measures Consultations

On December 22, 2021, the Office issued a Federal Register notice announcing a series of consultations on technical measures used voluntarily to identify or protect copyrighted works. After receiving written comments, the Office hosted an opening public plenary on February 22, 2022, a series of smaller discussions in June, and a closing plenary on October 4, 2022. The public comments and the consultations confirmed that there cannot be a one-size-fits-all approach to voluntary technical measures, and that there remains a lack of consensus in this area. Nevertheless, the consultations served as valuable opportunities for dialogue among stakeholders, which may lead to further voluntary action. The Copyright Office proposed options to continue its role as convener of these conversations in the future.

A letter, recordings of the plenary sessions, and the public comments are available on the Office’s website.

Standard Technical Measures

The Office also conducted a separate study on STMs as defined in section 512(i) of Title 17. This study examined the potential for existing technologies to serve as STMs, the proper interpretation of section 512(i), and potential statutory changes to encourage the adoption of STMs.

After considering the public comments and the interests of all stakeholders, as well as Congress’s objectives when it passed the Digital Millennium Copyright Act (DMCA) in 1998, the Copyright Office has recommended a few changes to section 512(i) that could facilitate the adoption of STMs as Congress originally envisioned.

Specifically, the Office recommends that Congress amend section 512(i) to 1) clarify that the terms “broad consensus” and “multi-industry” require the support only of the industries directly affected by an STM; 2) state that technical measures qualify as STMs if they are recognized as such by a broad consensus of copyright owners and service providers, even if they were originally developed by a narrower subset of stakeholders or emerged from proprietary processes; and 3) set forth a list of factors use in weighing whether a particular measure imposes substantial costs and burdens.

The letter and the public comments are available on the Office’s website.