Breaking Down Barriers to Innovation Act of 2015

To improve the process by which the Librarian of Congress considers requests for exemptions to section 1201(a)(1)(A) of title 17, United States Code, and to ease restrictions on the use of certain statutory exemptions to the Digital Millennium Copyright Act. 1. Short title This Act may be cited as the Breaking Down Barriers to Innovation Act of 2015 2. Sense of Congress It is the sense of Congress that— (1) the Librarian of Congress (referred to in this section as the Librarian (2) the Librarian should apply section 1201 of title 17, United States Code, in a manner that strikes a balance between the ability of persons to make noninfringing use of copyrighted works and the legitimate protection of intellectual property rights; (3) the Librarian, in considering whether to grant exemptions to the prohibition on the circumvention of technological protection measures, should recognize that such measures prevent persons from undertaking activities unrelated to the use of copyrighted works; and (4) the Librarian— (A) should not impose undue burdens on proponents of exemptions; and (B) should ensure that the rulemaking process for considering exemptions is responsive to changes in the technological landscape. 3. Circumvention of copyright protection systems (a) Violations regarding circumvention of technological measures (1) In general Section 1201(a)(1) of title 17, United States Code, is amended— (A) in subparagraph (A), by striking the second sentence; (B) in subparagraph (C)— (i) in the matter preceding clause (i)— (I) by striking During the 2-year period described in subparagraph (A), and during each succeeding 3-year period, Every 3 years, (II) by striking the Librarian shall examine the Librarian shall consider, if applicable (ii) in clause (i), by striking the availability for use of copyrighted works any reduction in the availability for use of copyrighted works as a result of the prohibition on the circumvention of technological measures (iii) in clause (iii), by striking or research repair, recycling, research, or other fair uses, and on access to information not subject to copyright protection (iv) by redesignating clauses (iv) and (v) as clauses (vi) and (vii), respectively; and (v) by inserting after clause (iii) the following: (iv) the impact that the prohibition on the circumvention of technological measures has on the accessibility of works and technologies for persons with disabilities; (v) the impact that the prohibition on the circumvention of technological measures has on the furtherance of security research; ; (C) by redesignating subparagraph (D) as subparagraph (F); (D) by striking subparagraph (E); (E) by inserting after subparagraph (C) the following: (D) In making a determination under subparagraph (C), the Librarian— (i) shall consider the totality of the evidence available to the Librarian; and (ii) may not assign the burden of proof to a proponent of an exemption. (E) The Librarian, at the discretion of the Librarian, may conduct a rulemaking proceeding under subparagraph (C) outside of the 3-year review process described in that subparagraph if the Librarian determines that it is substantially likely that persons who are users of a copyrighted work which is in a particular class of works are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of the prohibition under subparagraph (A) in their ability to make noninfringing uses of that particular class of works under this title. ; (F) in subparagraph (F), as redesignated— (i) by striking The Librarian (i) The Librarian (ii) by striking adversely affected, and the prohibition adversely affected. (ii) The prohibition ; and (iii) by adding at the end the following: (iii) At the end of each 3-year period described in subparagraph (C), the Librarian shall renew for the ensuing 3-year period each exemption granted under subparagraph (C) unless the Librarian determines that, as a result of changed circumstances, it is unlikely that any persons who are users of a copyrighted work in the class of copyrighted works to which the exemption relates will be adversely affected by virtue of the prohibition under subparagraph (A) in their ability to make noninfringing uses of that particular class of works under this title. ; and (G) by inserting after subparagraph (F), as redesignated, the following: (G) For purposes of this paragraph— (i) persons are adversely affected (ii) if a technological measure inhibits noninfringing uses of a work which is in a particular class of copyrighted works relating to improving accessibility of works or technologies for persons with disabilities, there shall be a presumption that persons who use that particular class of work are likely to be adversely affected; and (iii) the Librarian may find that a use of a work is noninfringing based upon the totality of the circumstances, including— (I) the presence of supporting judicial precedent; (II) the absence of contrary judicial precedent; (III) the intent of Congress; and (IV) any other factors relevant to— (aa) assessing the applicability of copyright protection; or (bb) exceptions to or limitations on copyright protection. . (2) Report Not later than 1 year after the date of enactment of this Act, the Librarian of Congress, in consultation with the Register of Copyrights and the Assistant Secretary for Communications and Information of the Department of Commerce, shall— (A) conduct a study, including by soliciting public comment, on— (i) ways to ease the burden on persons requesting an exemption under section 1201(a)(1)(C) of title 17, United States Code, as amended by paragraph (1); (ii) how the process for requesting and granting exemptions described in clause (i) can be used to foster security research; and (iii) how the process for requesting and granting exemptions described in clause (i) can be expanded to enable the sale and dissemination of circumvention tools, as described in subsections (a)(2) and (b)(1) of section 1201 of title 17, United States Code, for the sole purposes of enabling circumventions with respect to the classes of copyrighted works that the Librarian has published under subparagraph (F) of subsection (a)(1) of such section, as redesignated by paragraph (1); and (B) shall submit to Congress a report on the study conducted under subparagraph (A) that includes— (i) proposed legislation to achieve the goals described in clauses (i) and (ii) of subparagraph (A); and (ii) a description of any obstacles to the expansion described in clause (iii) of subparagraph (A) and proposed legislation for achieving such an expansion. (b) Reverse engineering Section 1201(f) of title 17, United States Code, is amended— (1) in paragraph (1), by striking for the sole purpose engaging in the circumvention for the sole purpose of undertaking activities aimed at achieving interoperability of an independently created computer program with other programs (2) in paragraph (2), by striking in order to enable achieve such interoperability for the activities described under paragraph (1), or for the purpose of enabling interoperability of an independently created computer program with other programs (3) in paragraph (3), by striking if the person other programs, and (c) Encryption research Section 1201(g) of title 17, United States Code, is amended— (1) in paragraph (1)(A)— (A) by striking activities necessary to identify and analyze flaws activities relating to the identification and analysis of flaws (B) by striking to advance the state of knowledge in the field of encryption technology for research purposes (2) in paragraph (2)— (A) in subparagraph (B), by striking necessary to conduct undertaken in the course of conducting (B) in subparagraph (D), by striking all that follows infringement under this title (3) by striking paragraphs (3) and (5); (4) by redesignating paragraph (4) as paragraph (3); and (5) in paragraph (3)(B), as redesignated, by striking with whom he or she is working collaboratively (d) Protection of personally identifying information Section 1201(i)(1)(D) of title 17, United States Code, is amended— (1) by striking solely (2) by striking who seeks to gain access to the work protected, and is not in violation of any other law (e) Security testing Section 1201(j) of title 17, United States Code, is amended— (1) in paragraph (2), by striking all that follows infringement under this title (2) by striking paragraph (3); (3) by redesignating paragraph (4) as paragraph (3); and (4) in paragraph (3), as redesignated, by striking subsection (2) paragraph (2)

Summary: Breaking Down Barriers to Innovation Act of 2015 Revises procedures established under the Digital Millennium Copyright Act for the Librarian of Congress to conduct an administrative rulemaking every three years to determine whether to exempt certain noninfringing uses of a copyrighted work from the statutory prohibition on circumventing a technological measure controlling access to a particular class of work. Requires the Librarian, when evaluating whether to allow an administrative exemption, to consider the impact of the circumvention prohibition on: (1) any reduction in the availability for use of copyrighted works; (2) repairs, recycling, or other fair uses when applied to copyrighted works, as well as access to information not subject to copyright protection; (3) accessibility of works and technologies for persons with disabilities; and (4) security research. Prohibits the Librarian from placing the burden of proof on the proponent of an exemption. Requires consideration of the totality of the evidence. Allows the Librarian to make administrative exemption determinations through rulemaking proceedings outside of the three-year review process if it is substantially likely that users of a copyrighted work are, or are likely to be in the succeeding three-year period, adversely affected by virtue of the prohibition in their ability to make noninfringing uses. Requires the Librarian to automatically renew for an ensuing three-year period any exemptions granted under a rulemaking unless, as a result of changed circumstances, it is unlikely that users are adversely affected by the prohibition. Establishes a presumption that users are likely to be adversely affected if a technological measure inhibits noninfringing uses that improve accessibility of works or technologies for persons with disabilities. Expands existing statutory exceptions by removing certain restrictions and conditions that apply to permissible circumventions for: reverse engineering to achieve interoperability of an independently created computer program with other programs; encryption research on copies, phonorecords, performances, or displays of a published work; activities to prevent the collection or dissemination of personally identifying information about a natural person; or authorized security testing on computer systems or networks.