Laura N. Gasaway
49 Copyright Soc'y 195 (2001)
INTRODUCTION
A.Today’s
Environment
Interest in distance learning courses and degree programs has continued
to escalate in recent years.Colleges
and universities have created distance education divisions to deal with
the burgeoning demands for such courses, some of them for-profit organizations.In
the past, distance education programs were offered primarily as video courses,
either live-time or asynchronous.Educational
institutions continue to offer distance learning experiences through a
variety of means, but increasingly they are developing online courses.Institutions
face a myriad of problems in implementing these courses and degree programs;
copyright concerns are among the most difficult with which to deal.Both
the ownership of copyrighted works created by their faculties and the use
within the courses of third party copyrighted works must be dealt with
as a policy matter by distance education providers.The
ownership issue is completely within the institution’s control since it
can develop its own copyright ownership policies, and a number of institutions
have done so recently.1
Although these policies differ from school to school, many have adopted
the recommendations of the American Association of University Professors[1]
and focus on faculty ownership of copyrighted works created by the faculty
member.[2]
With online courses, there may also be greater risks to the institution
that fails to obtain a license to perform certain types of copyrighted
works in distance education courses.In
order to perform works such as motion pictures, dramatic works and educational
videotapes in online course, the works first have to be digitized and placed
on a server so that students can access the works.Storage
on a server likely increases the risk that the reproduction will be detected
as compared to a live-time distance learning course delivered by video
in which a work is performed a single time, but to multiple students simultaneously.One
could argue that having the work reside on a server should be no different
than the one-time performance since each student is likely to view the
performance only once.Copyright
holders, however, point to the likelihood of repeated viewing for works
available on a server and the potential that students will download the
work as reasons to support differential treatment for performances in face-to-face
teaching.
Section 110(2) of the Copyright Act of 1976[3]
is quite restrictive in the types of works that may be performed in educational
transmissions which are limited to nondramatic literary and musical works.At
the time of the writing of this article, the recent effort to amend Section
110(2) appears to have stalled.In
the absence of an amendment to Section 110(2), educational institutions
have begun to develop copyright use policies that deal with the realities
of the current statute and attempt to advise members of the academy when
to seek permission, how to ask for it and how to acquire licenses to perform
copyrighted works for digital distance learning.Additionally,
colleges and universities are developing formal mechanisms for advising
faculty on copyright issues. For
example, many of them maintain websites that provide advice in the form
of guidelines or best practices along with material aimed at educating
the campus community about copyright.[4]Institutions
are also finding it necessary to provide informational support for licensing
copyrighted works for performance in distance education.[5]There
has been some interest in looking again at fair use guidelines[6]
although many of the education and library associations involved in the
Conference on Fair Use[7]
continue to oppose guidelines.
B.Licensing
Experience
The experience of educational institutions that seek licenses to use (perform)
motion pictures and videotapes for distance learning courses continues
to be poor.[8]After
an institution purchases a copy of the work to use in teaching, a license
to permit performance of the work via digital means is often not available
at any price. When approached for permission to perform a work purchased
solely for use in a distance education course, copyright holders often
deny the very use of the work for which it was purchased. Even if
licenses are granted, they often continue to be prohibitively expensive
with little recognition or credit given for the fact that the institution
has lawfully obtained a copy or even multiple copies of the work that it
now seeks to perform in a digitally delivered course.Another
significant problem is that producers of educational videotapes often are
ill equipped to deal with licensing requests at all.Many
producers view their business as the sale of videos to educational institutions,
and when asked about a performance license for use of the work in distance
learning, they frequently have no idea what the school is even asking.Worst,
there is no requirement that copyright holders even respond to queries
from schools seeking a license.Thus,
educational institutions are stuck with works they purchased to perform
in classes but which they are prohibited from using for distance education
without facing considerable risk.Further,
the possibility of infringement has increased with the advent of online
courses and the desire of faculty members to perform the same copyrighted
materials for distance education that they use in the face-to-face environment.[9]
C.The
TEACH Act
The Technology, Education and Copyright Harmonization Act was introduced
as Senate bill 487 in the spring of 2001 to amend Section 110(2) of the
Copyright Act and implement many of the recommendations made in the Register
of Copyrights’ Report on Distance Digital Education[10]
discussed below.Referred to as the
TEACH Act, an amended version passed the Senate on June 7, 2001 and was
approved by the House Subcommittee on Courts, the Internet and Intellectual
Property on July 11.As of this writing,
it has not passed the full House of Representatives.
The
provisions and details of the TEACH Act comprise the major part of this
article.
I.
BACKGROUND
A.Distance
Education Generally
Although extensive discussions on distance learning are relatively recent
in the United States, the concept is not new.It
has been around since the 1840s when Sir Isaac Pitman delivered instruction
on shorthand through the mail.Thus,
the first distance learning courses are what later came to be called correspondence
courses.These courses appeared in
Germany, England and the United States in the mid-nineteenth century and
were primarily aimed at providing vocational training for workers in the
newly evolving industrial economies.[11]Penn
State University was an early adopter of education by correspondence, and
it took advantage of Rural Free Delivery to extend the university’s courses
and knowledge of agricultural matters to farm families.[12]By
the early part of the twentieth century, the first department of correspondence
teaching was established at the University of Chicago followed quickly
by creation of the department of external Studies in 1911 at the University
of Queensland in Australia.[13]“The
idea of learning on one’s own proved so attractive that by the early 20th
century, courses in every conceivable subject were offered by colleges,
universities and proprietary institutes.”[14]The
Open University was founded in the United Kingdom in 1969 and it pioneered
distance learning on a massive scale.The
Open University had tremendous impact on distance education with its multi-media
approach to teaching that utilized materials consisting of constructed
texts, audio, video, films, filmstrips, radio and television broadcasts.[15]
Many writers have tried to define distance learning or distance education.Most
of the definitions center on the fact that the student chooses when the
learning occurs and that the teacher and the students are not present in
the same physical location when the learning takes place.[16]The
Tennessee Board of Regents adopted the following definition.“Distance
education occurs when there is a physical separation of the teacher and
the learner and when communication and instruction take place through,
or are supported by, any technological means such as telephone, radio,
television, computers or telecommunication technologies.”[17]Other
definitions use the term “mediated” or “distributed” instruction because
a medium is used to overcome the separation of teacher and student by time
and space.[18]
Against this rich history of distance education, interest in offering degree
programs and courses has increased on the part of educational institutions.
Because….technologies are now widely available at reasonable cost, many educators view distance learning technologies as an economical means of providing increased access to education and as a resource for educational enrichment.Schools may pool or share their resources to reach a greater number of students. As a result, students have greater access to a variety of instructors, including experts at universities and in the private sector.Distance learning technologies can also provide unique pedagogical enrichments.[19]
Students also are eager
to enroll in distance education courses because of the convenience.Also,
the availability of many advanced degrees solely through distance learning
or with a combination of resident and online courses, has made it possible
for many professionals to acquire advanced degrees or licensure.
The current Copyright Act recognizes the unique position and importance
of education by providing crucial exemptions to the exclusive rights of
the copyright holder.Unlike the
exemption for face-to-face teaching, however, instructional transmission
(i.e., distance education) is not so favored.The
performance and display of copyrighted works in face-to-face teaching in
a nonprofit educational institutions receives a broad exemption in the
Act.Section 110(1), often called
the “classroom exemption,” permits provides an absolute exemption to the
exclusive rights of the copyright holder for performances and displays
in the classroom if certain conditions are met.These
conditions include that the performance or display:(1)
occurs in a nonprofit educational institution; (2) is face-to-face, i.e.,
teachers and students are present simultaneously in the same place; (3)
occurs in a classroom or similar place devoted to instruction; and (4)
if the work is an audiovisual work, the copy that is performed is a lawfully
made copy.Although “classroom” is
broadly defined to include any place where instruction is occurring such
as laboratories, gymnasiums and libraries when the class comes to the library,[20]
the face-to-face restriction excludes distance learning from this particular
exemption.
If this broad exemption were available for distance education, most of
the copyright problems for teaching at a distance would have been solved,
but unfortunately, this is not the case.Section
110(2) deals with performances and displays in the course of a transmission,
and it is far more restrictive than is the classroom exemption.Although
any work may be displayed, performances are limited to nondramatic literary
or literary works.Even for performances
of those works and for displays, there are a number of other limitations.The
transmission must be:(1) part
of the systematic instructional activities of either a nonprofit educational
institution or governmental body; (2) directly related and of material
assistance to the teaching content of the transmission; and (3) made primarily
for reception in a classroom or other place normally devoted to instruction,
or to disabled persons whose condition prevents attendance in a regular
classroom, or by government employees as a part of their official duties.
The primary impact of this section is that it restricts the types of works
that may be performed which makes absolutely no sense to teachers.Why
should a teacher have to alter the content of a course just because it,
or a portion of it, is offered online or in any distributed fashion?The
major exclusion is for audiovisual works such as videotapes, but also on
certain types of musical and dramatic works that can be performed in such
courses.For example, opera and
musical comedy may not be performed because they are dramatic musical works.The
reason for this restriction is not absolutely clear, but it appears to
have been based on the state of technology in 1976 when the Copyright Act
was enacted and the type of distance education courses envisioned.The
model seems to have been “Sunrise Semester,” the open television broadcast
available on public television.
Equally difficult for distance education is the restriction on the place
of reception.Today, it is thought
that most distance learning courses will be received in the home or in
the dormitory room, not in a classroom or other place normally devoted
to instruction although many courses still are received in a classroom
which meets the requirements of the statute.And
there are educators who believe that successful distance education courses
should have a teacher at the receiving site to direct class discussion
and enhance the learning experience.Despite
this, classrooms the use of classrooms as the dominant place for reception
of such courses is likely to lessen as more and more as online courses
are developed.
The argument traditionally made by copyright holders was that absent distance
learning courses, they would have sold individual copies of their works
to the receiving sites.Thus, owners
lost sales and should have been compensated in the form of royalties for
performances of their works outside of that permitted by Section 110(2).Students
enrolled in distance education courses are unlikely to purchase individual
copies of videotapes that are performed in their courses.The
changes in how distance learning courses are offered necessarily alters
this expectation on the part of video producers.
In
addition to the Section 110(2) exemption, fair use certainly applies to
performances and displays in the course of instruction.Fair
use is a privilege that permits one other than the copyright owner to reproduce,
distribute, adapt, perform or display a work; in other words, activities
that otherwise would be within the exclusive rights of the copyright holder.“…
[T]he fair use of a copyrighted work, including such use by reproduction
in copies or phonorecords or any other means specified by that section
for purposes such as criticism, comment, news reporting, teaching (including
multiple copying for classroom use), scholarship or research, is not an
infringement of copyright.”[21]Thus,
teaching is mentioned directly in the text of Section 107.
The Register’s Report unequivocally states that fair use applies even to
the use of works not covered by Section 110(2).[22]Rather
than being an absolute exemption, however, fair use requires the application
of the four fair use factors to determine whether a use is fair.Each
of the four factors is important to this discussion, though none of them
completely answer the question of whether an educational performance is
a fair use.
Purpose and character of the use
is likely to favor the use when it is for instruction offered by a nonprofit
education, but not all educational uses are fair.Nature
of the copyright work examines the work itself as it is used.It
is unclear whether works that are produced primarily for the education
market should be more or less available for performance in a nonprofit
education course.Amount and
substantiality of the portion used in comparison to the work as a whole
indicates that a small portion of a work performed in distance education
may be permissible where showing the entire work would not be.Market
effect looks at the effect on the potential market for or value of
the work.If the institution has
purchased or lawfully acquired a copy of the work it seeks to perform in
a distance learning course, then there should be no adverse impact on the
market.The courts, however, have
also looked at the right to license the work in addition to sales as a
part of the market effect.[23]
II.
THE REGISTER’S REPORT
A.The
Register’s Recommendations
Several factors, such as the Digital Millennium Copyright Act (DMCA), the
Register’s Report plus the increased interest in online courses has focused
more attention on distance education and why the differences between classroom
performance and educational transmissions exist in the Act.The
legislative history of Section 110(2) is fairly brief, and naturally, it
relates to the environment that existed for distance education in the mid-twentieth
century.Those conditions are not
the same today.While understanding
the past is always useful, further study should focus on the present and
the future in order to demonstrate the critical need for statutory revision.
To implement the Register’s major recommendations, a number of changes
in the statute would be required.
1.Any
amendment should broaden the types of work that can be performed or displayed,
at least those that are not aimed primarily at the education market.
2.Even
with this broadening of the types of works that included, performances
of works except nondramatic literary and musical works.Those
works aimed primarily at the education market should be excluded from this
broader exemption, and presumably performance of more than a fair use portion
would require a license.
3.Any
such performances or displays should be made at the direction of or under
the supervision of the instructor as an integral part of the equivalent
of a class session.
4.The
physical classroom requirement should be eliminated as it no longer reflects
what is occurring in modern distance education.
5.Any
amendment should recognize that transient or temporary copies made in the
process of digital transmission not be counted as copies for which the
copyright holder would be compensated.
6.Educational
institutions that take advantage of any amended exemption should limit
the transmission as far as practical to those made for reception to students
officially enrolled in the course.
7.Institutions
that take advantage of an enhanced exemption and transmit performances
for distance learning courses digitally should be required to institute
copyright policies and to educate the community about copyright.
8.Students
should be notified that materials used in distance education courses may
be subject to copyright protection.
9. Finally,
performances under the exemption should be done only by means of lawfully
acquired copies.
B.Critique
of the Register’s Recommendations
Many of the recommendations were supported wholeheartedly by the educational
community, but others are problematic as academic institutions strive to
fulfill their broad missions to extend outreach to distance learners.
1.Performing
only reasonable and limited portions of works other than nondramatic literary
and musical works.Requiring
a license for the one-time performance of an entire motion picture in a
distance learning course will continue to restrict the way teachers can
do their jobs and continues to disadvantage distance education students
as compared to students who are participating in traditional face-to-face
instruction.Omitting sound recordings,
even of nondramatic works, is particularly problematic since most instructors
cannot perform nondramatic musical works without using the sound recording
that embodies the performance of the work.To
some extent, this recommendation appears to differentiate between scholarly
works and those originally intended for entertainment.The
difficulty in the academy is that works originally intended for entertainment
may also be the subject of serious academic study and critique, and it
makes little sense to afford them different treatment.
2.Excluding
works primarily aimed at the education market.There
are two principal problems with this limitation.As
mentioned above, few producers of educational videotapes and similar works
are equipped to handle license requests.Many
of them view their markets as sales to schools, and they have neither sought
nor required performance licenses.Limiting
the performance only to fair use portions of these works ignores the fact
that these works may be intended to comprise an entire teaching unit.It
is unlikely that the use of portions of the works will satisfy the needs
of teachers and students.Further,
works aimed at the education market are the very works that are the most
likely to be used in distance education, and excluding them is simply counterintuitive
to teachers.The general disinterest
in licensing on the part of the holders of copyright in educational works,
coupled with the fact that these works are likely to be the most in demand
for digital distance education, makes this recommended restriction unnecessary
and unlikely to meet the needs of either producers or educators.
3.Requiring
application of measures to prevent further dissemination of works performed.While
in the abstract this sounds reasonable, the recommendations should be modified
with limiting language to the effect that these measures should be applied
only to the extent reasonable necessary under the circumstances.Absent
the change, if the technology to stop downstream copying is not forthcoming,
then nonprofit educational institutions are foreclosed from performing
these works despite the other measures that the school might take to warn
students about copying or to create an environment that teaches students
about copyright and how to honor the rights of copyright proprietors.
4.Limiting
the performance to mediated instruction.The
Register’s recommendation appears to be based on an incomplete view of
what happens in today’s classroom.A
videotape may be shown in a face-to-face classroom not only once as the
report states,[24]
but multiple times as may be needed for reinforcement.[25]Even
after the showings in class, students who need additional reinforcement
are directed to the school’s library where they may view the tape in an
individual viewing station or may check out the videotape and watch it
repeatedly at home.Trying to envision
the equivalent of mediated instruction in the online environment is not
impossible, however, especially if one takes the broader and more accurate
view of mediated instruction even in the face-to-face classroom.For
example, if the videotape is digitized and stored on a server, each student
could be allowed to view it only a limited number of times, controlled
by requiring the use of a password.This
would treat viewing the performance similarly to the way performances are
handled today in the physical classroom.
C.Legislative
Activity as a Result of the Report
After publication of the Register’s Report on Copyright in May 1999 and
the hearing held by the House Subcommittee on Courts, the Internet and
Intellectual Property in June of the same year, there was little legislative
activity toward amending Section 110(2). Organizations interested in implementing
the recommendations from the Register’s Report explored the possibility
with Congressional staff members, but the timing was not propitious.By
the fall of 1999, Congress was already gearing up for the 2000 elections,
and these organizations decided to wait until the new Congress was sworn
in before seeking to have a bill introduced.
The bill envisioned would implement the Register’s recommendations.This
effort enjoyed the support of organizations such as the American Association
of Law Libraries, the American Council on Education, the American Library
Association, the Association of American Universities, the Association
of Research Libraries and the National Association of State Universities
and Land Grant Colleges.The Register’s
recommendations would go a long way to further distance learning and erase
the differences between face-to-face teaching and educational transmissions.These
organizations did not agree with all of the Register’s recommendations.
III.
TECHNOLOGY, EDUCATION AND COPYRIGHT
HARMONIZATION
ACT OF 2001
A.Legislative
History
Early in 2001, interest was revived in amending Section 110(2) of the Copyright
Act in the Senate, sheparded by Senator Orrin Hatch with the introduction
of S. 487.After Senate hearings
on March 13, 2001, the Copyright Office was asked to facilitate discussions
among interested parties with the goal of reaching consensus on issues
of disagreements in S. 487.This
was accomplished, and the bill, referred to as the TEACH Act, passed the
Senate on June 7, 2001, and was approved by the House Subcommittee on Courts,
the Internet and Intellectual Property on July 11.It
still has not been approved by the full House of Representatives.
The basic purpose of the TEACH Act is to broaden the exemption for instructional
transmissions and to include distance education on the Internet by amending
the Copyright Act to facilitate distance education and remove existing
statutory barriers.S. 487 is
based on the 1999 Register’s Report.
B.The
TEACH Act as Introduced in the Senate
S. 487 was introduced in the Senate in March 7, 2001 by Senators Orin Hatch
and Patrick Leahy.The original bill
was based very closely on the recommendations in the Register’s Report
to amend Sections 110(2) and 112 of the Copyright Act with some important
differences that respond to some of the concerns affected communities expressed
after the Report was issued.The
original bill expanded the types of works that could be performed beyond
nondramatic literary and musical works to include all types of works, but
for those works, only reasonable portions could be performed.The
exemption would not apply, if the work sought to be performed was created
primarily for instructional use or if the copy used in the transmission
were not a lawfully made copy.
The bill eliminated the requirement that reception of the performance or
display take place in a physical classroom.It
continued the requirement that the performance or display “be directly
related and of material assistance to the teaching content of that transmission”
and that the transmission be a regular part of the institution’s systematic
instructional activity.Two additional
safeguards were added for copyright holders.First,
only mediated instruction was eligible for the exemption and second, recipients
of the performance must have been officially enrolled students or government
employees.The wording in the
bill regarding mediated instruction was “made by or at the direction of
an instructor as an integral part of a class session.”Transient
copies, those made incidental to the transmission were not infringing copies,
but copies of the transmission could be retained no longer than was reasonably
necessary to complete the transmission.
The bill continued extending the exemption only to nonprofit educational
institutions and government agencies, just as in the current statute.An
additional requirement was added, however.An
institution that sought to take advantage of the exemption would be required
to develop and implement copyright policies and provide materials to faculty,
staff and students that explain copyright and promote compliance with the
copyright law.Further, institutions
would have to notify students that materials used might be protected by
copyright.
The final requirement for an institution that wants to take advantage of
the exemption focuses solely on digital transmissions that embody a performance
of a copyrighted work deals with technology.Under
the bill, transmitting bodies would be required to apply technological
measures that reasonably prevent unauthorized access and downstream copying.Also,
such bodies must not intentionally interfere with technological measures,
such as encryption, used by a copyright holder to protect a work.
The bill then called for a study by the Copyright Office within two years
after the date of enactment to focus on two primary issues:licensing
of copyrighted works by both private and public institutions and the use
of copyrighted works in distance learning classes.The
licensing issue was to include three types of delivery of distance education
courses – live interactive classes, faculty-recorded without students present
for later transmission and asynchronous delivery over computer networks.Additionally,
the Copyright Office was directed to convene a conference of interested
parties (representatives of copyright owners, nonprofit libraries and archives,
and nonprofit educational institutions) no later than two years after enactment
to develop fair use guidelines for the use of copyrighted works under fair
use and Sections 110(1)-(2).If the
Copyright Office deemed it appropriate, it was then to submit these guidelines
along with information on the organizations, government agencies and institutions
that participated in the development of the guidelines.Finally,
the guidelines were to be posted on a publicly-accessible website.
1.Register’s
Testimony
Hearings were conducted on March 13, 2001.Marybeth
Peters, Register of Copyrights, testified that the Copyright Office was
in favor of S. 487 as introduced.She
stated that the bill allowed the same activities to take place using digital
network delivery of educational courses and programs that was permitted
in the current face-to-face teaching situation under the balance struck
in the 1976 Act.She believed
that the safeguards the bill contains would minimize the risk to copyright
holders that are inherent in using copyrighted works in digital format.[26]Ms.
Peters commented that the challenge for her office in developing the Register’s
Report was to formulate recommendations that addressed digital distance
education by removing the statutory technologically obsolete obstacles
without destroying the developing market for commercially-produced digital
works.[27]She
cautioned that the bill permits an institution to upload a work onto a
server solely to facilitate transmission but that the exemption applies
only digital works.It would not
permit transmitting institutions to digitize a literary work such as a
textbook because of the serious risks to copyright holders. “This exemption
is not intended to force those rights holders to ‘go digital’ against their
will.”[28]
Ms. Peters was somewhat more restrained about the requirement that her
office conduct a study and convene a conference to develop guidelines.Much
of the information that the bill dictated should be included in the study,
though valuable to the Senate subcommittee, is proprietary in nature and
therefore would be difficult to obtain.She
stated that the development of fair use guidelines for digital distance
education would be appropriate and that her office supported efforts to
develop guidelines.Ms. Peters cautioned,
however, that guidelines have certain inherent weaknesses since they are
not the law; the effectiveness of guidelines really is dependent on how
interested parties accept and endorse them.On
the other hand, a Congressionally-mandated effort to develop guidelines
would say to interested parties that guidelines were an acceptable and
even desirable outcome.Ms. Peters
noted that there were problems in including Sections 110(1) and 110(2)
in the call for guidelines since these sections represent specific statutory
exemptions with clear limits, and thus these sections should not be included
in the scope of the conference.Sections
110(1)-(2) should be addressed through Copyright Office informational materials
instead.[29]
2.Other
Witnesses
President Gerald A. Heeger of the University of Maryland University College
testified on behalf of major higher education and library associations
in support of the bill.He recognized
that S. 487 attempts to balance the expansion of the distance education
exemption with increased safeguards for copyright holders.He
pointed out that the current law wisely recognizes the “benefit and pedagogical
value” of permitting performances and displays of copyrighted works in
the classroom without having to seek permission or acquire a license from
copyright holders.This bill would
do much to conform copyright law to modern distance education.Heeger
stated that he did not believe that licensing was the solution to the copyright
barriers distance education currently encounters since licensing does not
give the instructor the same freedom to select content to perform or display
in distance learning that he or she has in the physical classroom.Teaching
cannot all be planned in advance, and faculty need to be able to supplement
textbooks and other purchased course materials “on the fly.” It the school
must acquire a license before this can occur, quality distance education
will be denied the flexibility so critical to its success.[30]“Provided
there are proper safeguards, the online environment should not be more
restrictive than the face-to-face teaching environment.”[31]
President Heeger expressed disappointment on behalf of the associations
he represented for the differential treatment of instructional material
by failing to permit the use even of reasonable and limited portions of
these works.He recognized the
concern that permitting such use in the exemption could threaten the primary
market this type of material.However,
the exclusion will impose a serious constraint on the development of distance
education because instructional works are the very materials that will
help to reduce with the difference between campus-based and remote instruction.Thus,
he urged the inclusion of instructional material in the exemption for the
performance of limited and reasonable portions thereof.[32]
The education and library associations supported the call for a Copyright
Office study on the licensing of copyrighted works for digital distance
education.These same groups were
concerned, however, about a conference to develop guidelines since the
language of the proposed amendment appeared to presume that the conference
would be able to develop guidelines.President
Heegar pointed out that attempts over the past several years to develop
guidelines have proven difficult and controversial.Moreover,
interested parties do not even agree that guidelines are needed at all
because the fair use doctrine calls for judgments to be made on a case-by-case
basis, and these judgments do not lend themselves to exact quantification.[33]
Concerning the impact of transient copies and the likelihood of downstream
copying, Dr. Paul LeBlanc, President of Marlboro College, gave the following
example in his testimony:
As many of you know, a network server must send digital packets to literally hundreds of servers before it reaches the intended recipients through the world wide web.However, servers that receive intermediate copies routinely have their memory cache flushed, the remnants of those data are often incomplete, and if the proposed amendments are approved, at best, ‘hackers’ would obtain unauthorized access to small excerpts of rich media, which, out of the context of instruction are essentially so devoid of value as to be an insignificant threat to primary markets for the source materials. [34]
The
American Association of University Professors generally supported S. 487
as indicated by the following quote:
Over the past few years, AAUP has spoken out forthrightly, and not uncritically, on the subject of distance education.The Association believes that distance education raises serious concerns in terms of academic freedom, shared governance, and the quality of education.At the same time, we have focused our efforts on promoting access to higher education and ensuring that quality is protected, regardless of the mode of communication.… AAUP welcomes the elements of 487 that will enable students to make use of the digital environment without interfering with owners’ rights.[35]
Not surprisingly, copyright holders were generally opposed to S. 487 and
the need to amend Section 110(2).Testifying
on their behalf, Allan R. Adler, Vice President for Legal and Governmental
Affairs, Association of American Publishers (AAP), began his testimony
stating that the objections that his association had raised in response
to the Register’s Report in 1999 were still valid today.He
referred to the AAP’s testimony before the House Subcommittee on Courts,
the Internet and Intellectual Property on June 21, 1999, which concluded
that changes in the law were not needed.One
of the stated purposes of the recommended changes was to facilitate quality
distance learning programs, and the AAP testified then that such programs
were thriving both from nonprofit providers and increasingly from commercial
providers. Another reason that the AAP thought no change in the law was
needed dealt with the tremendous growth in the market for digital content.Further,
the Register’s Recommendations were dependent on technological safeguards
that do no yet exist. Finally, the AAP testified that the recommendations
are unfair because they ignore the merging and collaboration of the for-profit
sector with nonprofit providers as well as the development of for-profit
distance education units within traditional nonprofit educational institutions.Finally,
he criticized the Register’s treatment of licensing as “glossing over”
the issue of licensing of content for distance education.[36]
Specifically, should the Senate go forward on S. 487, Mr. Adler had specific
recommendations.First, any bill
to amend Section 110(2) and broaden the exemption must completely exclude
works produced primarily for instructional use.Second,
the exemption should be available only to accredited nonprofit educational
institutions and not to libraries, “think tanks” or scholarly societies.Third,
concern about using the exemption to digitize an entire textual work and
display it online could be eased if the phrase “reasonable and limited
portions” were added for displays. Fourth, the language should be amended
to clarify the fact that the exemption applies only to works that are already
in digital format and does not permit institutions to digitize an analog
work, which would implicate the adaptation right.[37]
Publishers and producers also have concerns involving other issues.For
example, Mr. Adler stated that the term “reasonably prevent” was not specific
enough, and objective criteria were needed so that compliance with this
requirement could be evaluated.He
noted also that there is no mechanism to enforce the requirement and found
this to be problematic.The stipulation
that transmitting bodies not interfere with technological measures that
a copyright owner employs to protect a work covers only intentional interference
and proving such intent to interfere sets a standard of proof that would
be impossible to meet.Instead, he
suggested substituting language to the effect that the standard be that
the transmitting body do nothing that could be reasonably expected to interfere
with such measures.[38]
He also suggested that the amendment contain a provision concerning waiver
of Eleventh Amendment sovereign immunity by state entities for purposes
of related copyright infringement suits if those entities seek to take
advantage of the exemption.[39]
3.Critique
of S. 487
Although the education and library communities supported the bill as introduced,
there were problems with the proposed amendment also.The
major concern was thatthe bill still
did not treat distance learning the same as in-class instruction which
will continue to cause difficulties for institutions that provide distance
education and for millions of students.Five
particular problems were noted.[40]
a.
The exclusion of works produced primarily for instructional use for distance
learning while allowing performance and display of these works in face-to-face
teaching is a significant problem.If
the restriction that the copy performed or displayed must be lawfully made
is retained along with the limitation on the use only to reasonable and
limited portions, then permitting the use of these works in distance learning
courses will not threaten the market for such works.
b.
The bill should not exclude the performance and display for works in analog
form.It will eviscerate the provision
since digital works are likely to be protected by technological measures
that would void the measure.Also,
circumvention of such technological controls is already actionable under
the anti-circumvention provision of the DMCA.If
analog versions cannot be used for digital distance learning, there will
be no version available for such use at all.This
is the one safeguard against the total technological lock-up of works and
it is critical to users of copyrighted works.
c.
Any requirement on institutions to apply technological protections to control
access and downstream copying should be limited to those that are technologically
feasible and economically reasonable.Such
measures for eliminating downstream copying may not yet exist, and when
they are developed, their use may be cost prohibitive to educational institutions.Institutions
should not be required to have the latest and best access and copying control
but only that which is reasonable.
d.
The bill as introduced contains some limitations that do not comport with
the operation of the Internet.For
example, the limitation on retention of transient copies and the failure
to account for cachingis critical
and should be corrected if the bill is to be relevant.
e.
Mediated instruction must be defined as more than performances and displays
made by or at the direction of the instructor; student-initiated performances
that otherwise comply with the proposed amendment must also be included.[41]
Additional issues of concerns for some groups was the lack of clarity about
whether libraries beyond those in a nonprofit educational institution would
be covered by the exemption and how complicated the various restrictions
are within the proposed amendment.Librarians
have been very concerned about the role of libraries in distance education
and copyright.As library associations
testified in the Copyright Office hearings on distance education:
With the rapid growth of distance education initiatives, there is an expanding role for libraries in distance education support services….Such support can include maintenance of off-site collections at regional centers and campuses, interlibrary loan units, other delivery services including electronic delivery of information resources, reference assistance, and access to needed materials locally and off-site via consortium and other arrangements.[42]
Testimony went on to highlight issues for libraries such as providing access
to reserve reading materials for distance learners through electronic reserves
and the authentication of students for access to the institutions licensed
electronic resources.[43]
C.The
Negotiated Version of S. 487
After serious negotiations between interested parties, an amended S. 487
was introduced to the Senate Judiciary Committee on May 17, 2001 and was
approved.Senators Hatch and Leahy
each noted the importance of the legislation and their delight with the
negotiations that produced this new version.
The goal of the TEACH Act is to update the educational use provisions of the copyright law for the 21st century, allowing students and teachers to benefit form deployment of advanced digital technologies like the Internet and bring media-rich learning experiences wherever students are located.[44]
Senator Hatch further noted that this legislation was an important element
in educational reform as new interactive educational experiences as well
as traditional ones may be offered more easily around a student’s own schedule.“Beyond
the safe harbor provided by this legislation, opportunities for students
and lifetime learners of all kind, in all locations, are limited only by
human imagination and the cooperative creativity of the creators and users
of copyrighted works.”[45]
Senator Patrick J. Leahy also commented on the amended language for S. 487 stating that it would help eliminate the difference between face-to-face teaching and that done digitally at a distance.He referred to the Senate’s recent focus on educational reform and how this bill reflects understanding that educational institutions must be able to use new technology to deliver educational programs and courses in the best way possible while still protecting copyrighted works for untoward infringement.In his home state of Vermont, distance learning is critical not only for quality education but also for economic development.“Technology has empowered individuals in the most remote communities to have access to the knowledge and skills to improve their educational and ensure that they are competitive for jobs in the 21st Century.”