WILL THE DISTANCE
LEARNING PROVISION BE AMENDED?
March 2002
Earlier columns have detailed the difficulties that Section 110(2) of the Copyright Act causes for distance education.[1] Compared to the broad exemption for performances and displays in face-to-face teaching activities in a nonprofit educational institution, the distance learning section is very narrow both as to what works may be performed without seeking permission from the copyright holder. The Digital Millennium Copyright Act contained a requirement that the Copyright Office conduct a study of modern distance education and make recommendations about whether and how the statute should be amended to facilitate digital distance education.
The Copyright Office’s Report on Distance Education[2] was published in May 1999 and its recommendations were also discussed in an earlier column.[3] This column focuses on efforts to embody the Register’s recommendations into a bill and the status of the effort to amend Section 110(2).
Following publication of the Register’s Report, hearings were held before the House Subcommittee on Courts, the Internet and Intellectual Property in June 1999. Only five witnesses were invited to testify in addition to the Register of Copyrights, two representatives of copyright holders, two representing the user community and one representing iCopyright, an organization created by publishers to provide reproductions primarily of printed works and to handle the collection and distribution of royalties for reproductions of copyrighted works. Not surprisingly, opinion was sharply divided over the need to amend Section 110(2). There was no further Congressional action on the issue for nearly two years.
In March 2001 Senators Hatch and Leahy sponsored a bill to implement the Register’s recommendations, S. 487, the Technology, Education and Copyright Harmonization Act (TEACH). A hearing on S. 487 was held on March 13 before the Senate Judiciary Committee with testimony presented on behalf of copyright proprietors and the higher education community in addition to the Register’s own testimony which naturally supported this bill that would implement the recommendations made by her office. Again, support for the bill was divided. Higher education was generally supportive of the amendment but had reservations about some of the language and about the call to develop guidelines. Copyright owners strenuously objected to the bill.
At the conclusion of the hearings, the Senate Subcommittee asked the Register to facilitate efforts to negotiate an improved S. 487. The Copyright Office then convened a working group which hammered out a negotiated version of the bill. For almost a month, the group worked hard to reach agreement and truly negotiated which means that each side relinquished some things it wanted in exchange for the inclusion of certain other provisions. The negotiated version of TEACH was brought before the Senate Judiciary Committee on May 17 where it passed unanimously; S. 487 passed the full Senate on June 7, 2001.
The bill was then referred to the House Subcommittee. A distance learning bill was introduced by Congressman Boucher on June 7, H. R. 2100. This bill may have been favored by many in higher education and by librarians since it was more favorable to the needs of library users and educational institutions. The negotiators had agreed to support S. 487 in both houses with no further amendment. Congressman Boucher was persuaded to withdraw H.R. 2100 because of this unprecedented support for S. 487. Further, supporters of TEACH asked the House to adopt the bill without any changes and cautioned subcommittee members that amendments to the negotiated bill likely would cause the entire agreement to collapse. The provisions are interrelated and groups agreed to one provision because of the presence of another. S. 487 passed the House Subcommittee on July 11, but it has not yet been addressed by the full House.
It is rumored that certain Congressional representatives were unwilling to pass a distance education amendment unless a bill to extend protection to databases that do not qualify for copyright protection is also enacted. The timing may also have been an issue. By mid-July Congress was headed toward its summer recess and the fall elections. Thus, the failure of the House to act on TEACH may have been due to timing. Then the events of September 11 focused Congressional attention on recovery and on anti-terrorism legislation.
The coalition of organizations representing copyright holders and higher education that negotiated S. 487 is concerned that the passage of time threatens the hard-fought agreement. In fact, some members of both communities might prefer that the agreement dissolve and return to the earlier disagreements in an effort to influence Congress to take their side.
Next month’s column will deal with the language of TEACH and how it would amend Section 110(2), if enacted.
[1] See “Copyright Corner” in the October, November and December 1998 issues of Information Outlook.
[2] See U.S. Copyright Office, Report on Copyright and Digital Distance Education 5, May, 1999 [hereinafter Report]. The report may be found under “Reports” at http://lcweb.loc.gov/copyright.
[3] Discussed in “Copyright Corner” in the October 1999 issue of Information Outlook.