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 20^th 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 21^st 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 21^st Century.”[46]

        The Senate Report on S. 487 offers considerable explanation of the compromises made by the negotiating group to produce the amended language.[47]The same broadening of the exemption as to works and place or reception is embodied in the new language but there are more requirements and restrictions on educational institutions.These requirements can be divided into three types:general requirements thatthe transmitting institution itself must meet,those that relate to information technology and which the institution will have to satisfy and finally, those that the individual faculty responsible for the course will have to meet, certainly under the supervision of the institution.[48]

1.Works subject to the exemption.The revised TEACH Act would expand the scope of Section 110(2)’s exemption to apply to performances and displays of all categories for works, subject to two specific exclusions. The first is for works“produced or marketed primarily for performance or display as a part of mediated instructional activities transmitted via digital networks.”The second exclusion is for performances or displays that use a copy or phonorecord is not lawfully made or acquired, but only if the institution knew or had reason to believe the copy was not lawfully made or acquired.[49]
 

        Excluding works produced or marketed primarily for performance or display as part of digital mediated instructional activities is aimed at protecting the market for such materials.Negotiators agreed that permitting performance of even a reasonable portion of these works might impair the incentive to private companies and others to create and distribute such works.By limiting this exclusion with the reference to digital networks makes it clear that not all instructional materials are excluded.For example, instructional works that were developed and marketed for use in the traditional classroom are not excluded.[50]
 

        The expansion of the requirement that performances and displays be done only by the use of lawfully made copies goes beyond the current Section 110(1) requirement that performance of audiovisual works in the physical classroom be only via lawfully made copies.Now, any performance or display of any work for distance learning must be accomplished using a lawfully made copy which should reduce the likelihood of proliferation of unauthorized copies.It is clear that a copy made under fair use is a lawfully made copy.A work not yet published or distributed, would not be available for use under this exemption absent permission of the copyright holder, however.[51]

        For the increased types of works that now may be performed or displayed, such performance or display is limited, however.Performances of other than nondramatic literary and musical works are limited to “reasonable and limited portions,” which would not include the entire work.Determining what constitutes reasonable and limited portions “should take into account both the nature of the market for that type of work and the pedagogical purposes of the performance.”[52]For displays of works other than nondramatic literary and musical works, the limit is“an amount comparable to that which is typically displayed in the course of a live classroom setting.”Even a display of an entire work might be appropriate and consistent with that which occurs in a face-to-face classroom when the works are those such as images, short poems, graphics, and the like.[53]

2.  Eligible transmitting institutions. 
 

    Only accredited nonprofit educational institutions and government bodies qualify for the exemption under the now Senate-approved version.The accreditation requirement relates somewhat to the changing nature of distance education providers even within the nonprofit environment.It is intended to provide some assurance that the institution is a bona fide educational institution.[54]The accreditation requirement applies to the institution as a whole and not to particular degree or certificate programs themselves.[55]Accreditation for post-secondary education means accreditation as determined by regional or national accrediting agencies recognized by the U.S. Department of Education.For elementary and secondary education, accreditation means recognition by the applicable state licensing or certification procedures.[56]
 

3.  Mediated instructional activities.
 

        Performances and displays must be made “by, or at the direction of, or under the actual supervision of an instructor as an integral part of a class session offered as a regular part of … systematic mediated instructional activity.”[57]There are several requirements to make sure that the instruction is part of mediated activity.First, the performance or display must be made under the direction or supervision of an instructor who is actually supervising the class.This does not eliminate enrolled student-initiated performances or displays as long as they are done under the actual supervision of the instructor.This supervision requires neither constant real-time supervision nor pre-approval by the instructor for student-initiated performances.Further, the supervision requirement does not eliminate asynchronous performances and displays, a hallmark of distance education.[58]

        Two other requirements relate to the concept of mediation for distance learning.The performance or display must be an integral part of the class session and not an unrelated performance or display for entertainment.Additionally, the performance or display must be comparable to ones that occur in the physical classroom.This would eliminate the display of an entire textbook, for example, thus, the exemption should not replace textbooks, coursepacks and other materials that students traditionally purchase for a course.[59]
 

4.  Limitations on receipt of transmissions. 
 

        The significant benefit of digital distance education is the fact that it is not bound by either time or place.Thus, TEACH eliminates the restriction in the current Section 110(2) that transmissions be received in a classroom or other place normally devoted to instruction except for disabled individuals who cannot attend a regular classroom or government employees who attend a distance learning course embodying a performance of a copyrighted work as a part of their official duties.In the place of the classroom restriction, TEACH imposes not a general requirement of network security, but requires that the transmission be made solely to students officially enrolled in the course.Even this is not absolute; the bill contains the language “and to the extent technologically feasible.”An institution that takes advantage of the exemption will have to find some way to identify or authenticate those students authorized to receive the performance, such as through passwords or other measures.[60]For government employees, S. 487 continues the restriction that receipt of the transmission is part of these employees’ official duties or employment.[61]

5.  Additional safeguards to counteract new risks.
 

        The use of digital transmission to deliver distance education subjects copyright holders to greater risks than did analog transmission.This is primarily because one can make perfect multiple copies from a digital work and disseminate those copies across the country and the world.To deal with the increased risk encountered by copyright holders, TEACH introduces three types of new safeguards – educational, informational and technological.One of the safeguards applies whether the transmission is digital or analog.[62]
 

    Transmitting bodies or institutions that wish to take advantage of the exemption TEACH provides, must both implement copyright policies and also provide information to members of the university community information that accurately describes and promotes compliance with the copyright law.Additionally, the institution must provide notice to recipients that materials used in the course may be subject to copyright.The reason for this requirement is to promote an environment of compliance but also to alert recipients to their responsibilities under the law in order to decrease the likelihood of unintentional infringement.[63]

        If the transmission is digital, the transmitting body has an additional requirement.It must apply technological measures to prevent retention of the copyrighted work in an accessible form by recipients for longer than the class session and to prevent further unauthorized dissemination of the work in accessible form.The duration of a class in asynchronous distance education is not the same duration of the course for the term or semester but instead is analogous to the face-to-face mediated session.“Class session” is generally defined as the period during which a student is logged onto the server.Naturally, this will vary according to the needs of the student and with the design of the course.[64]

        The technological protection measures relate only to retention of a copy of the work in the computer of the recipient of the transmission and not to the institution.In fact, under Section 112 with certain requirements and limitations the work may remain on the server of the transmitting institution or government body for the duration of the course.A student may access the copy each time she logs on to participate in the class session of the course for which the work is performed or displayed.[65]

6.  Transient and temporary copies. 
 
 

        TEACH exempts from liability those who participate in digitally transmitted performances and displays that are authorized by reason of copies or phonorecords made through automatic technical process of such transmission or any distribution therefrom.Additionally, transmitting bodies should not be responsible for copies made by third parties, but those copies that are maintained on the system should neither be maintained in any way so they are accessible to unauthorized recipients nor be maintained on the server longer than is necessary to make the transmission.[66]This does not relate to Section 512 of the Copyright Act which governs online service provider liability when the transmitting institution selects the material to be used and to whom it will be transmitted.Cache copies are considered transient or temporary copies just as the terms are used in Section 512, but temporary copies may also occur in the transmission stream or in the computer of the recipient of the transmission.[67]

7.  Ephemeral Recordings. 
 

        Digital distance education’s primary benefit to students is the ability to complete courses without regard for time or place; naturally, this is of particular interest to working adults, but also to others.In order to make asynchronous education a reality, however, transmitting institutions must be able to place on their servers works that will be performed or displayed for such courses.TEACH includes an amendment to Section 112 to make this possible by saying that organizations qualified to take advantage of the amended Section 110(2) may load materials on their servers.Further, the language of the proposed amendment recognizes that it may be necessary for to make more than one ephemeral recording in order to carry out digital transmissions.[68]The proposed amendment to Section 112(f) contains several limitations on even authorized ephemeral recordings.For example, retention of the ephemeral copy is restricted to the transmitting body, and no further copies may be made from these except those authorized under Section 110(2) as amended.[69]Any ephemeral recordings so made must be used exclusively for transmissions authorized under the amended Section 110(2).In the situation where there is no digital version available to the institution, or if the available digital version is subject to technological measures that prevent its use for the distance education course, the institution may digitize the analog version subject to the limitation that such digitization is restricted to the portion of such works authorized to be performed under Section 110(2).[70]

8.  Relationship to fair use and contractual obligations. 

    The TEACH Act agrees with the statement in the Register’s Report[71] that the fair use doctrine still is available and nothing in the Act is intended to limit or alter the scope of fair use.[72]The Register’s Report also states that fair use is technology neutral and that the dearth of established guidelines does not mean that fair use is inapplicable.[73]Additionally, nothing in TEACH is intended to alter the existing relationship between the exemptions under copyright law and licensing restrictions.[74]
 

9.  Nonapplicability to secure tests.

        The Senate Report also addresses and expresses concern for secure test forms intended solely for use in actually administering standardized tests.Using these forms for unauthorized purposes will totally undermine the tests.The Committee indicates that TEACH in no way is intended to change current law or relax any protections currently afforded to secure tests.The example given is that a secure test acquired solely to be used in actually administering the test is not authorized to be used for other purposes by the proposed amendment to the copyright law.[75]

10.PTO Report. 
 

        The negotiated version of S. 487 calls for the Patent and Trademark Office to conduct a study and prepare a report for the information of Congress only.The report will address technological protection systems to protect copyrighted works in digital form and will have no impact on the meaning or applicability of either the Copyright Act or of TEACH.[76]
 

    The negotiated version does not address other uses of copyrighted works in digital distance education.For example, it does not deal with student use of supplemental materials in digital form, nor does it deal with basic library issues for providing materials to distance education students such as electronic reserves and other digital library resources.Since these activities do not involve performances and displays under Section 110(2), they were viewed as being outside the scope of this amendment.[77]

IV.HOUSE CONSIDERATION OF TEACH
 

A.House Bill on Distance Education
 

        At the time S. 487 as amended was introduced into the House of Representatives, there was already an existing House bill dealing with distance learning.H.R. 2100 was introduced by Representatives Rick Boucher and Darrell Issa on June 7, 2001 and it had many similarities to the Senate-passed version.The House version lacked the troublesome report on technological protection systems and the call for guidelines.This bill applied not only to nonprofit educational institutions and government bodies, but also to libraries.[78]It was dropped by its sponsors in favor of the negotiated S. 487.

B.House Consideration of S. 487
 

        The TEACH Act as amended through negotiations between content providers and educational and library associations was introduced in the House of Representatives on June 27, 2001.Congressman Howard L. Berman discussed the bill before the House Subcommittee onCourts, the Internet and Intellectual Property and characterized it a bill that does not completely satisfy any of the stakeholders, but which represents a significant revision of copyright law.“…. [F]or the first time and admittedly in circumscribed circumstances – [certain entities] would be allowed to digitize and place online the copyrighted works of others.”[79]It is extremely important that S. 487 gives entities that are authorized to transmit performances and displays for distance education the ability to digitize works to enable the transmission when the copyright holder has failed to make a digital version available or has decided not to do so.[80]
 

        Congressman Howard L. Berman highlighted the fact that one could not ignore important concerns of copyright holders about distance education in which downstream copying is paramount.If these concerns are not dealt with in any legislation, the incentive for copyright holders to develop digital materials will be reduced and distance education will be the poorer for it.“Legislation works best when interested parties can find a workable compromise.”[81]
 

1.  Statement of Marybeth Peters, Register of Copyrights

    The testimony of Ms. Peters focused on the discussions between interested parties that the Copyright Office was asked to facilitate in late April 2001.She characterized the negotiation sessions as lengthy and difficult but highlighted the fact that the parties were committed to finding a workable and balanced compromise. She indicated that the Copyright Office supports the carefully negotiated compromise that was reflected in the Senate-passed S. 487.“This important legislation extends the current distance education exemption to cover mediated instructional activities transmitted by digital networks; it does this by amending sections 110(2) and 112 of the Copyright Act.”[82]

2.  Statement of Allan R. Adler
 

        Mr. Adler again testified on behalf of content providers, but also as a member of the negotiating group; this time his statement was much more positive since the negotiated amendment to TEACH responded to many of the concerns he raised at the March Senate hearings on S. 487 as originally introduced.He first mentioned that members of the Association of American Publishers (AAP) support using the Internet for distance education programs but reminded the Subcommittee that any amendments to Section 110(2) should take into account the marketplace issues that publishers and producers will face as a result of any amendment.The revisions to the original bill that were suggested by the AAP were made in an attempt to make S. 487 more acceptable to the publishers and producers.[83]According to Adler, the agreements that were reached by the negotiating group represented a true “get some give some” compromise among affected communities.While no one group of stakeholders got all everything it wanted, all of the involved groups recognize that the compromise is superior to the original bill.It “….will achieve the goal of allowing teachers and students to benefit from the content-enriched instructional use of digital networks like the Internet, while providing appropriate safeguards to limit the additional risks to copyright owners that are inherent in exploiting copyrighted works in digital format.”[84]

3. Statement of John Vaughn
 

        Speaking for the higher education associations, Executive Vice President John Vaughn of the Association of American Universities stated that the negotiated version of the TEACH Act represents a balance between expanding the uses of copyrighted works for online education on one side and safeguards against misusing such materials on the other side.[87]He pointed out that distance education continues to be hampered by the fact that it is not treated the same as face-to-face teaching when it comes to using copyrighted materials in the course of instruction.The goal of the negotiations was to find a compromise that would reduce much of the disparity without creating significant new risks for publishers and producers.[88]
 

        Vaughn reported that despite strongly held views and sharp divisions, the negotiations were conducted with good faith, candor and recognition of the need to compromise.Regardless of the difficulty involved in achieving consensus, all of the negotiators recognized the need to support the final compromise through the legislative process.Requesting that the House Judiciary Committee mark up S. 487 without amending it, Mr. Vaughn stated, “We are fully aware of the presumption of asking you to accept this product without change, and surely reasonable changes could be proposed.”[89]

4.  Passage by the House Judiciary Committee
 

        At the June 27, 2001 hearing, Representative Zoe Lofgren expressed concern about an issue of academic freedom.She referenced the provision that barred schools from interfering with technological controls that a copyright owner might impose on a copyrighted work that would prevent retention or dissemination for longer than a class session.Representative Lofgren asked whether this provision might be used to prohibit a faculty member from delivering a lecture that analyzed those technological measures. By the July 11 markup session, however, she had dropped her concern and did not want to delay passage but did urge that the “troublesome language” be cleared up in the legislative report that will accompany the act.

CONCLUSION

        The efforts of many people went into the Register’s Report and the study that led up to that report.Further, both publishers and producers and the education and library communities have worked hard through a unique and costly process to craft a negotiated bill that enjoys wide support.The Senate and the House Judiciary Committees have recognized the unique situation provided by the negotiated S. 487, and yet the bill has not been introduced to the full House of Representatives.With every day that passes the chances that S. 487 will continue to enjoy this support decreases.The agreement is fragile and very important work and agreements will be lost if the bill does not become law.