COPYRIGHT: A CHALLENGE TO DISTANCE LEARNING: PART I

October 1998

Many educators, continuing education providers and students herald distance education as the wave of the future and as the solution to a variety of problems for teachers and learners. Distance education will enable students to take courses at a distance utilizing a variety of technologies such as passive video, audio and video conferencing and satellite transmission of live class sessions. Courses offered over the Internet will permit students to work at their own pace wherever they have an Internet connection. Educational institutions and innovative teachers will continue to develop courses for distance learners that take advantages of the newest technologies and that use a variety of copyrighted teaching materials.

Copyright law may prove to be a major stumbling block to distance learning. This column in the next issues of Information Outlook will discuss the copyright problems related to distance learning and will evaluate proposed solutions.

The 1976 Copyright Act differentiates between face-to-face teaching and teaching at a distance. One of the best exemptions in the Act is the so-called “classroom exemption” found in § 110(1). It permits teachers in non-profit educational institutions to perform or display any work in the course of instruction offered face-to-face, if instruction takes place in a classroom (broadly defined), and, if the work is an audiovisual work, the copy must have been lawfully made. Thus, teachers and students may sing copyrighted songs, act out plays or see films in the course of instruction without seeking permission from the copyright owner. A teacher may even show a rented videotape in the classroom as long as the purpose of the performance is instruction as opposed to entertainment.

This is in sharp contrast to the Act’s only mention of distance education. Because the Act predates modern distance education, the Act refers to “instructional broadcasting” for such courses. The statute details a number of restrictions: (1) the only works that may be performed are nondramatic literary or musical works, (2) reception must be in a classroom or other place normally devoted to instruction, (3) the performance must be directly related and of material assistance to the teaching content, and (4) the course must be part of the systematic instruction of a nonprofit educational institution or government body.

Distance educators have great difficulty in understanding why the Act permits use of a videotape in face-to-face teaching but not in the very same course that is offered via distance learning. In order to use the videotape for a distance education course, the teacher or school would have to seek permission from the copyright holder for each time it is used. It seems particularly unfair to schools that purchase a copy of a videotape to show to students cannot use the tape in distance learning even for nonprofit educational purposes without seeking permission and paying royalties if the copyright owner so requests. In fact, some universities that offer courses face-to-face and simultaneously televise the courses to students registered to take the course through distance learning have taken the extraordinary step in the televised course of blacking out videotapes shown to students face-to-face.

Another serious difficulty for distance educators is the restriction on where reception can occur. By being limited to a “classroom or other place normally devoted to instruction,” reception in the home is not permitted except for disabled individuals whose disability prevents attendance at a regular classroom. Educators believe that ultimately distance learning will be received in the home. Should that occur, then the course will not satisfy the restrictions in the statute.

During the deliberations at the Conference on Fair Use, it was clear that the major concern of copyright owners related to using their materials is downstream copying of their audiovisual works. Owners were adamant that students who see the transmission not be able to make a copy of the videotape. This will prove even more problematic when courses are delivered to the home where downstream copying will be much harder to prevent.

The best solution for education is to amend the Copyright Act to make it clear that distance learning is the modern equivalent of face-to-face instruction. Naturally, there would be some restrictions on the educational institution. For example, the course would have to be restricted to enrolled students only. Further, institutions likely would have to adopt methods to discourage downstream copying.

Even these narrow exemptions are not available to distance education providers outside of nonprofit educational institutions and government bodies. Further, there are issues other than performance and display that relate to distance learning and copyright. In the next issue, problems relating to Internet delivery will be highlighted.