COPYRIGHT: A CHALLENGE TO DISTANCE LEARNING: PART II

November 1998

Last month's column discussed the copyright problems surrounding traditional distance learning in nonprofit educational institutions. Part II looks at distance learning courses offered over the Internet by a nonprofit educational institution and highlights problems relating to copyright. Next month's Copyright Corner will focus on commercial and for-profit distance learning courses and copyright.

Educational institutions early recognized the potential of the Internet as a mechanism for delivering courses or portions of courses to students. The students could be resident on campus or could reside at a distance, even a great distance. Internet delivery of educational courses is growing rapidly, and courses can be either synchronous or asynchronous or a combination of the two.

Within a single course, an instructor may use the Internet in a variety of ways. For example, course administrative matters can be communicated to students electronically to relieve the school and the student of the vagaries of the U.S. mail or fax technology. So, the course syllabus, reading list, information on exams and grades can be constantly available to student via the Internet. The Internet can be used to deliver the actual course materials by loading them on the course website. These materials could be developed by the faculty member herself or they could consist of copyrighted works assigned to the students. Another use of the Internet for courses is to administer examinations. The copy of the exam is available to students on the course website, the student completes the exam and sends the answers to the instructor electronically. Live class sessions such as chat rooms on a particular topic can be organized on a regular basis. Thus, all of the students and the faculty participate in a synchronous experience. Additionally, the faculty member can communicate with students individually using e-mail or with them as a group using a listserv. Also, the class can carry on discussions through a threaded discussion list in between class sessions as an adjunct to the classroom.

Only the delivery of course materials over the Internet for distance learning raises serious copyright issues. The technology permits teachers to use course materials in a variety of formats over the Internet, again copyright can present significant stumbling blocks. These copyrighted works may be text materials or audiovisual works, software and the like. The first limitation is that for any course over the Internet which delivers copyrighted works via that medium, the institution must restrict access to enrolled students. If it does not, then the educational institution may incur royalty charges for each person who accesses the course materials part of the course website.

Written materials – The classroom guidelines that accompanied the l976 Copyright Act permit teachers to reproduce materials for distribution to their classes. These guidelines, published in House Report 94-1476, contain both portion limitations as well as time limitations. For example, a teacher may reproduce copies of a journal article to distribute to each student in the class if the article does not exceed 2500 words in length; the decision to use the article is made so late in the class term that there is no opportunity to seek permission of the copyright holder; and the article is used only one class term without permission from the copyright owner.

Delivery of one copy of an article to each student in a class under these guidelines, whether by photocopy or by the Internet is permitted. There are some outer limits, however. Within the class term, only one article from an author or three from a periodical issue or a collective work may be reproduced and distributed. Further, only nine items can be reproduced under these guidelines within the "safe harbor." These limitations likely mean that few courses can provide all of the materials a student will need under the guidelines. Therefore, permission must be sought and royalties paid to distribute materials over the Internet in excess of the classroom guidelines.

Non-Print Materials -- Many courses offered by nonprofit educational institutions use a variety of other types of materials in addition to textual works. For example, a music appreciation course will necessarily use recorded music and may need to display the sheet music. The classroom guidelines include graphic works such as cartoons or graphs, but not audiovisual works, multimedia works, musical and dramatic works. To reproduce entire works for inclusion on a course website requires permission from the copyright holder. Including short clips of these works on a protected website may be a fair use because the copying is de minimis, but including larger portions is not likely fair use.

Placing nonprint works on the course website also raises the performance and display rights. However, whenever a student views the performance or display over the Internet, it is likely to be a private performance rather than a public one. Since the copyright owner is entitled to royalties only for public performances, the performance is exempted while the reproduction is not.

There are alternatives that avoid some of these copyright problems. For example, a teacher could include on the course website only materials that fall within the guidelines or those for which the faculty member has received permission. Other materials could be purchased by students in the form of a textbook (even an electronic textbook) and/or a coursepack for which royalties are paid. There are some alternatives even for courses that use a number of motion pictures. The faculty member could assign the movie and require students to rent it from a video store or borrow it from a library to watch for class.

Royalties for the reproduction of their copyrighted works on webpages for distance learning could be a significant revenue stream for publishers and producers over time. But if royalties are too high or if the system for seeking permission is too slow or cumbersome, teachers will simply exclude their materials or will use them without obtaining permission. In future columns proposed solutions to copyright problems will be discussed.