Guest Editor:Kenneth D. Crews, Associate Professor of Law and of Library and Information Science and Associate Dean of the Faculties for Copyright Management, Indiana University-Purdue University Indianapolis
 

    The fair use of works in distance education has been one of the most extraordinarily difficult copyright issues for colleges and universities.One source of difficulty has been the changing nature of distance education, as displays and performances of copyrighted works have moved from a relatively confined television environment to the Internet, where materials may be further duplicated and transmitted with ease.Libraries are also increasingly involved with delivering materials to students at remote locations through electronic reserves and other services.

Another source of difficulty is the peculiar law for distance education.A new report from the U.S. Copyright Office addresses these issues and proposes revisions to the law to achieve a more meaningful and workable balance between the rights of copyright owners and users, while promoting the continued growth of distance education using digital technologies.Should Congress enact those proposals, educators would have new opportunities for reaching students at remote locations.Educators would also need to limit access to students enrolled in the course, implement systems for informing students and others about copyright, and strive to prevent misuse of copyrighted content by students through information programs and warning notices.

    In order to foster quality education, copyright law long has allowed instructors to make displays and performances of copyrighted works — without permission from owners — in the live, face-to-face classroom at nonprofit educational institutions.Once the educational experience is transmitted to remote locations, however, existing law, enacted by Congress in 1976, sets rigorous ground rules and applies sharp limits on the types of works that may be used at all.

Current law generally restricts transmissions of protected works to students who are located in classrooms or other similar locations.Even then, those copyrighted works may not include audiovisual works and dramatic literary and musical works.Clearly, the law does not foster the growth of distance learning through digital technologies, where students may access materials at locations other than a “classroom,” and where the transmission necessarily involves some incidental copies in order to make the display or performance of a work possible.Moreover, the disallowance of whole categories of works forces illogical barriers on the advancement of learning.
 
 

Expand coverage of rights to meet technological necessities.Digital transmissions involve the making of incidental copies to make the transmission possible.The Copyright Office proposes that transient copies be regarded simply as part of the automatic technical process of a transmission.

Allow displays and performances in the context of mediated instruction.The Copyright Office expressed concerns with electronic reserves or other arrangements whereby entire works are made available to students, potentially displacing sales.To facilitate uses for educational purposes, however, the report recommends that works be used in a context where the instructor is illustrating a point or where the use is an integral part of a course structure.
 

Expand the scope of allowed materials.The recommendations would eliminate the current proscription of dramatic works and audiovisual works.On the other hand, the proposal would allow only limited portions of those works in a manner consistent with the market for that type of work and the pedagogical purposes of the use.
 

Eliminate the requirement of transmitting the educational experience solely to classrooms and similar places.

Implement safeguards to reduce risks to the copyright owners.Transient copies may be retained only as needed to complete the transmission.The institution must develop copyright policies and provide those policies to students, faculty and others. The transmission must include a notice that contents may be subject to copyright protection, and the institution should implement technological protections to prevent unauthorized access and further dissemination of the material.
 

Permit retention of a copy of the distance-education program on a server for access limited to students in the course during the duration of the course.
 

Continue to apply fair use to activities outside the exemption for distance education.Examples of possible fair use include: converting a work from analog to digital format for transmission, and using no more than a limited portion of a work.The report also emphasizes that guidelines interpreting fair use are not the law and may at best provide a safe harbor from potential liability, but the Copyright Office remains hopeful that understandings of fair use may emerge from future discussions among diverse stakeholders.

Should these recommendations become law, educational institutions will have both new opportunities and new responsibilities. To have the benefit of the law, educational institutions and their libraries will have to establish policies and procedures and assure that faculty, librarians, and students are aware of the law and are complying with its conditions.As the report goes to Congress, all interested parties should convey their views and concerns in order that the law may ultimately serve the important objectives of education.

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The Copyright Office report on distance education is available at <http://lcweb.loc.gov/copyright/>.