This article was published in CAUSE/EFFECT journal, Volume 22 Number 3 1999. The copyright is shared by EDUCAUSE and the author. See http://www.educause.edu/copyright for additional copyright information.
Distance Learning and Copyright: Is a Solution in Sight?
by Laura N. GasawayFor at least the past decade, educators have looked toward distance education as a way to create educational opportunities for underserved populations. While some courses have been offered on video for a much longer time, the real promise of distance learning is only now being realized with the development of the Internet and its use for delivering educational courses and programs. Teaching students at a distance can provide a mother with young children with high-school courses, a college-bound student who lives in a remote area with advanced college preparatory courses not offered in his local area, or a master�s degree program in public health to health practitioners all over the state. The development of the Internet and its use for distance learning--or more accurately, distributed education--likely will mean that even on-campus students may take one or more courses or parts of courses on the Internet.
Why is copyright a concern in offering these courses? The copyright law contains substantial roadblocks for distance education, and educational institutions and faculty are now finding that their efforts to provide distance education courses are often hampered by copyright.
Classroom exemption
The use of copyrighted works in face-to-face teaching in a nonprofit educational institution is generally favored in the law. In fact, Section 110(1) of the Copyright Act, often called the classroom exemption, permits the performance and display of any work by students or teachers if the following conditions are met. If the performance or display (1) takes place in a nonprofit educational institution, (2) is face-to-face, that is, teachers and students are present in the same place, (3) occurs in a classroom or similar place devoted to instruction (such as a laboratory or library), and (4) is an audiovisual work, then the copy that is performed is a lawfully made copy.
If this same exemption applied to distributed education, most of the copyright problems for teaching at a distance would be solved. Unfortunately, the broad exception is not so available. 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. Instead of being able to perform any work, schools that transmit courses are limited to performing nondramatic literary or musical works without permission of the copyright holder and paying royalties if requested. Even for performances of those works and for displays, there are a number of limitations: (1) it must be part of the systematic instructional activities of either a nonprofit educational institution or governmental body, (2) it is directly related and of material assistance to the teaching content of the transmission, and (3) the transmission is 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. This makes absolutely no sense to teachers. Why must they change the content of a course just because it, or a portion of the course, is offered in a distributed fashion? The impact is primarily on the use of copyrighted videotapes used in instruction but also on the types of music and dramatic works such as plays, musicals, and so forth. Opera and musical comedy may not be performed under the exemption without permission. The reason for this restriction appears to have been the state of technology in 1976 when the Copyright Act was enacted and the type of distance education courses that were envisioned. The model seems to have been �Sunrise Semester,� the open television broadcast available on public television.
The second major impact is the restriction on the place of reception. Today it is believed 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.
Fair use exemption
In addition to this exemption, fair use certainly applies to performances and displays in the course of instruction. Rather than being an absolute exemption, however, fair use requires the application of four factors to determine whether a use is fair. Each of the four factors is important to this discussion:
- Purpose and character of the use is likely to favor the use when it is for instruction offered by a nonprofit educational institution.
- Nature of the copyright work examines the work itself as it is used. It is unclear if 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 that is 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 for reproduction and performance as a part of the market effect.
The need for expansion of the exemption for transmission in the course of instruction was recognized by educators and their institutions. Schools need to be able to perform entire works, including audiovisual works. Under what conditions should this be possible?
Amending the Copyright Act
The Digital Millennium Copyright Act1 (DMCA), which amended the 1976 Copyright Act, required the register of copyrights to conduct a study and report to Congress whether and how the act should be amended to facilitate distance education. The stated purpose of the study was to develop recommendations on how to promote distance education through digital technologies while maintaining balance between copyright holders and users.
The register was directed to consider a number of factors in this report: (1) the need for an exemption for distance education through digital networks, (2) categories of works to be included, (3) whether there should be quantitative limitations on how much of a work can be used, (4) who should benefit from the exemption, that is, just nonprofit educational institutions or all distance education providers, (5) who can receive the distance education materials under the exemption (in other words, whether reception of the transmission should be restricted to students enrolled in the course), (6) whether there are available technological measures to prevent unauthorized access, (7) the extent to which the availability of licenses should be considered in assessing eligibility for any exemption, and (8) any other factors the register deems important. The register of copyrights held a series of hearings in early 1999 in addition to using a panel of experts on technology and a consultant on licensing to provide the necessary background for preparing the report. Her Report on Copyright and Digital Distance Education2 was presented to Congress in late May 1999.
The register�s report contains a number of important recommendations. Of greatest benefit to the education community is the recommendation that the categories of works included in the exemption be expanded to include dramatic literary and musical works and audiovisual works. The second important recommendation is that the restriction on the place of instruction be removed. The report also suggests retention of the exemption�s current limitation to nonprofit educational institutions and governmental bodies. It further recommends that the coverage of rights be expanded to meet technological necessities so that digital copies made incidental to a transmission are not viewed as infringing copies. The report recommends that when the performance of a work is an integral part of the instruction or when the instructor is illustrating a point, the performance be exempted. Educational institutions would also have some responsibilities if the report�s recommendations are adopted. They would need to (1) apply measures to protect against unauthorized access, (2) provide protection against unauthorized dissemination after access has been acquired, (3) use only lawfully acquired copies of copyrighted works that are performed or displayed, and (4) educate the campus community about copyright.
On June 24, 1999, the House Subcommittee on Intellectual Property held hearings on whether an amendment was needed to the Copyright Act for distance education. In addition to the register of copyrights, Professor Laura N. Gasaway (the author), representing the major higher education and library associations, and John T. Cross, a law professor at the University of Louisville, spoke in favor of an amendment.
Competing interests
Opposition to an expansion of the exemption comes from most of the content provider community. Representatives of the Association of American Publishers and Viacom testified that licensing of these works for distance education was working fine and that there was no need to expand the exemption. The major concerns articulated relate to prevention of downstream copying and the fact that there are no technological measures yet developed to ensure that such copying does not take place.
To date, no legislation has been introduced in either the House or the Senate, but there continues to be considerable interest on the part of some legislators and educators.
Educators will have to realize that even if the act is amended to grant broader rights to perform and display works in the course of broadcast transmission, it will not provide them the right to distribute materials to students. Outside the very limited rights that the fair use exemption provides and the classroom guidelines, they will still have to seek permission and pay royalties for reproducing coursepacks and the like. The register�s report even emphasizes the concept of mediated instruction for any exemption, rather than just providing online materials.
The need for an amendment to the current Copyright Act to facilitate distributed education is clear, at least to educators, librarians, and educational administrators. Congress will have to deal with competing interests in fashioning such an amendment. The goal should be to recognize distance education as the modern equivalent of the classroom while not adversely affecting the rights of copyright holders to sell their works. If preventing downstream copying of their works is the primary concern of owners, then placing responsibility on the educational institution to take reasonable steps for ensuring that such copying does not take place should go a long way toward solving the problems. At the same time, copyright owners must recognize that fair use still applies to distributed education and some uses of their works will be covered under fair use principles.
The future of distance learning is bright if Congress recognizes the need to amend the law to facilitate providing such educational opportunities via digital networks. Absent an amendment to the statute, educational institutions and faculty will struggle with unanswered requests, denials of permissions, and cumbersome licensing procedures for performance of works and face what have proved to be unduly high charges in many instances.
Sidebar
EDUCAUSE Actions and Position on Promoting Distance Learning through Digital Technologies EDUCAUSE submitted a letter in December 1998 to the Copyright Office expressing interest in acting as a consultant and participant in future meetings concerning distance learning and digital technologies, especially the questions focusing on the technological aspects involved with distance learning. In March 1999, EDUCAUSE responded to the Copyright Office�s request for comments by providing an analysis of the issue along with a list of concise, guiding principles the association believes should determine distance learning exemptions in the digital age. Both of these documents are available in the Policy Initiatives section of the EDUCAUSE Web site, specifically at http://www.educause.edu/issues/digitaltech.html.
Since the study was first announced, EDUCAUSE has been meeting informally with a group of associations representing K-12 education, libraries, and others to discuss and plan comments on the distance learning section of the DMCA. EDUCAUSE endorsed a letter submitted by the group to the Copyright Office providing recommendations for distance learning demonstrations and is currently assisting in finding a congressional sponsor to introduce legislation that reflects the recommendations found within the Copyright Office report.
Endnotes
1 Public Law 105-304, signed into law on October 28, 1998
2 U.S. Copyright Office, Report on Copyright and Digital Distance Education, May 1999 [http://lcweb.loc.gov/copyright/cpypub/de_rprt.pdf]
Laura N. Gasaway ([email protected]), director of the Law Library and professor of law at the University of North Carolina-Chapel Hill, writes the Copyright Corner for the Special Library Association�s Information Outlook and also has a copyright column in Against the Grain. Her recent books on copyright include Growing Pains: Adapting Copyright for Libraries, Education and Society (1997) and Librarians and Copyright: A Guide to Copyright in the 1990s, with Sarah K. Wiant (1994), a second edition of which is underway.