[Federal Register: December 23, 1998 (Volume 63, Number 246)]
[Notices]               
[Page 71167-71169]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23de98-122]


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LIBRARY OF CONGRESS

Copyright Office
[Docket No. 98-12A]

 
Promotion of Distance Education Through Digital Technologies

AGENCY: Copyright Office, Library of Congress.

ACTION: Request for comments and notice of public hearing.

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SUMMARY: The Copyright Office is preparing recommendations for 
Congress, in accordance with Section 403 of the Digital Millennium 
Copyright Act, on the promotion of distance education through digital 
technologies. This notice requests written comments from all interested 
parties, including representatives of copyright owners, nonprofit 
educational institutions, and nonprofit libraries and archives, in 
order to elicit views and information to assist the Office in its 
analysis of the relevant issues preparatory to making its report and 
recommendations. This notice also announces the schedule for, and 
invites participation in, a series of three public hearings to be held 
in Washington, DC, Los Angeles, California and Chicago, Illinois.

DATES: Written comments must be received in the Copyright Office on or 
before 5 p.m. E.S.T. on February 5, 1999. Interested parties may submit 
written reply comments in direct response to the written comments or 
the oral testimony offered at the hearings. Reply comments will become 
part of the record if received on or before 5:00 p.m. E.S.T. on 
February 24, 1999.

    See SUPPLEMENTARY INFORMATION for hearing dates and additional 
submission deadlines.

ADDRESSES: All submissions should be addressed to Sayuri Rajapakse, 
Attorney-Advisor, Office of Policy and International Affairs. Those 
sent by regular mail should sent to the U.S. Copyright Office, 
Copyright GC/I&R, PO Box 70400, Southwest Station, Washington, DC 
20024. Submissions delivered by hand should be brought to the Office of 
Policy and International Affairs, Office of the Register, James Madison 
Memorial Building, Room LM-403, 101 Independence Avenue, Southeast, 
Washington, D.C. Submissions by telefax should be made to (202) 707-
8366. Submissions by electronic mail should be made to 
``[email protected]''; see SUPPLEMENTARY INFORMATION for file formats and 
other information about electronic filing.
    See SUPPLEMENTARY INFORMATION for hearing addresses.

FOR FURTHER INFORMATION CONTACT: Shira Perlmutter, Associate Register 
for Policy and International Affairs, or Sayuri Rajapakse, Attorney-
Advisor, Office of Policy and International Affairs. Telephone: (202) 
707-8350. Telefax: (202) 707-8366.

SUPPLEMENTARY INFORMATION:
    Written Comments
    The Copyright Office will be placing all comments and reply 
comments on its Website (http://lcweb.loc.gov/copyright/disted/). 
Comments and reply comments should be sent, therefore, in one of the 
following formats:
    If by regular mail or hand delivery: Send, to the appropriate 
address listed above, two copies, each on a 3.5-inch write-protected 
diskette, labeled with the name of the person making the submission, 
his or her title and organization. The document itself must be in a 
single file in either Adobe Portable Document File (PDF) format 
(preferred), or in Microsoft Word Version 7.0 or earlier, or in 
WordPerfect Version 7 or earlier. The file name must be no longer than 
eight characters with a three-character extension.
    If by electronic mail: Send to ``[email protected]'' a message 
containing the name of the person making the submission, his or her 
title, organization, mailing address, telephone number, telefax number 
and e-mail address. The message should also identify the document 
clearly as either a comment or reply comment. The document itself must 
be sent as a MIME attachment, and must be in a single file in either 
Adobe Portable Document File (PDF) format (preferred), or in Microsoft 
Word Version 7.0 or earlier, or in WordPerfect 7 or earlier. The file 
name must be no longer than eight characters with a three-character 
extension.
    Anyone who is unable to submit a comment in electronic form should 
submit ten paper copies by hand or by mail to the appropriate address 
listed above.
    All written comments should contain the name of the person making 
the submission, his or her title, organization, mailing address, 
telephone number, telefax number and e-mail address.

Public Hearings

    The Copyright Office will hold three public hearings.
    The first hearing will be held in Washington, DC, on January 26 and 
27, 1999, beginning at 9 a.m. E.S.T. on both days, at the Postal Rate 
Commission, third floor Hearing Room, 1333 H St., Northwest, 
Washington, DC. This hearing will be preceded, on January 25, 1999 from 
2 p.m. to 5 p.m., E.S.T. by a demonstration of distance education 
programs using digital technologies in the Automation Orientation 
Center, LM G-45, James Madison Building, Library of Congress, 
Washington, DC.
    The second will be held in Los Angeles on February 10, 1999, 
beginning at 9 a.m. P.S.T., at the University of California at Los 
Angeles (UCLA), James West Alumni Center Conference Room, 325 Westwood 
Plaza, Los Angeles, California.
    The third will be held in Chicago on February 12, 1999, beginning 
at 9:30 a.m. C.S.T., at the University of Illinois at Chicago, College 
of Medicine, Room 423, 1853 West Polk St., Chicago, Illinois.
    Anyone desiring to testify at one of the hearings should submit a 
written request by hand delivery or telefax which should be received no 
later than 5 p.m. E.S.T. on January 12, 1999. All requests to testify 
should identify clearly the hearing to which reference is made and the 
individual or group desiring to appear. The Copyright Office will 
notify all witnesses of the date and expected time of their appearance, 
and the maximum time allowed for their testimony.
    Anyone desiring to testify at one of the hearings must also submit 
a summary of their testimony, so designated. The summary may be 
delivered by hand or sent by telefax, electronic mail or regular mail. 
It must be received by 5 p.m. E.S.T. at least 10 days prior to the date 
of the hearing at which the testimony will be presented. Ten copies of 
the summary are required if delivered by hand or sent by regular mail.

Background

    On October 28, 1998, H.R. 2281, the Digital Millennium Copyright 
Act, was enacted into law (Pub. L. 105-304, 112 Stat. 2860). Section 
403 requires that the Copyright Office consult with representatives of 
copyright owners, nonprofit educational institutions, and nonprofit 
libraries and archives, and thereafter to submit to Congress 
recommendations on how to promote distance education through digital 
technologies, including interactive digital networks, while maintaining 
an appropriate balance between the rights of copyright owners and the 
interests of users. Such recommendations may include legislative 
changes.
    The statute instructs the Register of Copyrights to consider:
    (1) The need for an exemption from exclusive rights of copyright 
owners for distance education through digital networks;
    (2) The categories of works to be included under any distance 
education exemption;

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    (3) The extent of appropriate quantitative limitations on the 
portions of works that may be used under any distance education 
exemption;
    (4) The parties who should be entitled to the benefits of any 
distance education exemption;
    (5) The parties who should be designated as eligible recipients of 
distance education materials under any distance education exemption;
    (6) Whether and what types of technological measures can or should 
be employed to safeguard against unauthorized access to, and use or 
retention of, copyrighted materials as a condition of eligibility for 
any distance education exemption, including, in light of developing 
technological capabilities, the exemption set out in section 110(2) of 
title 17, United States Code;
    (7) The extent to which the availability of licenses for the use of 
copyrighted works in distance education through interactive digital 
networks should be considered in assessing eligibility for any distance 
education exemption; and
    (8) Such other issues relating to distance education through 
interactive digital networks that the Register considers appropriate.
    In accordance with its mandate, on November 16, 1998, the Copyright 
Office published a Notice of Request for Information in the Federal 
Register asking for the identification of parties interested in the 
promotion of distance education through digital technologies and of the 
issues with which those parties were concerned. 63 FR 63749 (Nov. 16, 
1998). Although December 7, 1998 was fixed as the deadline for receipt 
of communications from interested parties, due in part to the large 
volume of late responses, the Office continued to accept materials for 
consideration and inclusion in the public record until December 14, 
1998. By that date, 175 responses were received. The Office is in the 
process of reviewing all received materials.

Specific Questions

    The Office seeks comment on the following specific questions. 
Parties need not address all questions, but are encouraged to respond 
to those as to which they have particular knowledge or information.
    1. Nature of Distance Education
    (a) How may distance education be defined? In what sense does it 
differ from traditional face-to-face education? To what extent does it 
utilize digital technologies? In what sense does it differ from the 
general use of electronic communications in educational settings?
    (b) What is the nature of the distance education programs using 
digital technologies that are currently available, or in development? 
Do they involve students using the Internet as a resource, 
communicating with teachers by e-mail, communicating with class members 
in chat rooms, or participating in classes conducted by 
teleconferencing? To what extent are they interactive? To what extent 
are they asynchronous? To what extent are copies made or kept, and by 
whom?
    (c) Are course materials made available in electronic form? To whom 
are they made available? What restrictions are imposed on their access, 
use, modification or retention?
    (d) How are such programs funded? What proportion of the entities 
who develop or offer them are nonprofit? What types of fees are charged 
to students? Are the programs intended to, and do they, generate a 
profit?
    (e) What proportion of such programs are accredited? By whom are 
they accredited?
    (f) Who are the recipients of such programs? What communities are 
served? Are students primarily located in any particular geographic 
communities (e.g., urban or rural)? Are there particular criteria for 
enrolling in or otherwise gaining access to the programs? How many 
students participate in a program at a time? Are the programs made 
available to students in other countries?
    (g) At what level are such programs offered? Are they offered at 
the level of elementary school, high school, college, graduate school, 
or adult education? Are courses offered for credit, and as part of 
degree programs?
    (h) To what extent is new content created for such programs, and by 
whom? To what extent is pre-existing content used, and of what type 
(e.g., motion pictures, music, sound recordings, computer programs, 
books)? How is it used, and in what amounts?
    (i) Are there institutional policies in place with regard to the 
creation and use of such programs? Is any instruction provided to 
students or teachers in connection with such programs regarding 
copyright law, or regarding the giving of attribution or credit?
    2. Role of Licensing
    (a) Where pre-existing content is used in distance education 
programs using digital technologies, to what extent do the persons or 
entities involved obtain permission for the use of that content? Is 
this accomplished by direct contact with the copyright owner, or in 
some other way? To what extent do the parties enter into negotiated 
licenses, or use form contracts?
    (b) To what extent do the persons or entities providing such 
programs rely on defenses available under the copyright law in choosing 
not to obtain a license (e.g., fair use, section 110(2), or the 
doctrine of implied license)? To what extent do they use public domain 
material, and if so, of what type?
    (c) Have there been difficulties in obtaining licenses? If so, for 
what reason(s)? Are the difficulties different in nature or degree than 
for other types of uses, including traditional education and including 
multimedia uses generally?
    (d) To what extent can technology be used now or in the future to 
ameliorate any difficulties in licensing? Can it serve to facilitate 
the identification of rights holders, the clearance of rights and the 
process of obtaining licenses, including price differentiation based on 
such attributes as the user's purpose, need, institutional affiliation, 
or ability to pay?
    (e) What other options exist for making the permissions process 
easier? How likely is the development of collective or blanket 
licensing, or ``one-stop shops,'' and within what time frame?
    3. Use of Technology
    (a) What technologies are used to prepare and disseminate digital 
distance education programs? Are these technologies specifically 
developed or produced for the distance education programs, or are they 
generally commercially available?
    (b) What technologies are available to protect the security of 
digital distance education programs? In particular, are there 
technologies in use or under development that can prevent the 
unauthorized reception, use, or retention of copyrighted materials 
incorporated into such programs, or that can authenticate materials or 
protect their integrity? What is the time frame for the availability of 
such technologies? What parties or entities are developing them, and 
what type of costs are involved in implementing them?
    4. Application of Copyright Law to Distance Education
    (a) Is existing law adequate in addressing current and anticipated 
forms of distance education using digital technology? If not, in what 
ways is it inadequate? Are there reasons why digital transmissions 
should be treated differently from education through broadcasting or 
closed circuit technologies, or in a traditional classroom?
    (b) Is it preferable to deal with the copyright issues raised by 
digital distance education through specific exemptions like section 
110(2) or

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through a flexible balancing approach like fair use? What role should 
be played by voluntary guidelines such as the Fair Use Guidelines for 
Educational Multimedia (sometimes referred to as the Consortium of 
College and University Media Centers (CCUMC) guidelines)?
    (c) If a new or amended exemption or exemptions for distance 
education were to be adopted:
    <bullet> Which section 106 rights should or should not be covered?
    <bullet> What categories of works should or should not be covered?
    <bullet> To what extent should there be quantitative limitations on 
the portions of a work that can be used?
    <bullet> Who should be entitled to the benefits of such an 
exemption? Accredited or nonprofit institutions only?
    <bullet> How should the class of eligible recipients be defined?
    <bullet> Should such an exemption be limited to nonprofit distance 
education activities?
    <bullet> Should the use of technological measures to protect 
against unauthorized access to, and use or retention of, copyrighted 
materials be required? If so, what types of measures?
    <bullet> To what extent should the availability of licenses for the 
use of copyrighted works be considered in assessing eligibility?
    <bullet> Should there be limitations on student copying or 
retention of the copyrighted materials?
    <bullet> Should the provision of electronic reserves be included?
    <bullet> Should the provision of any information about copyright 
law be required as a condition for eligibility?
    <bullet> Are there other factors that should be taken into account?
    (d) What would be the economic impact of such an exemption, 
including the impact on the actual or potential markets of copyright 
owners of different types of works?
    (e) What would be the international implications of such an 
exemption? Would it be consistent with U.S. treaty obligations?

    Dated: December 18, 1998.
Marybeth Peters,
Register of Copyrights.
[FR Doc. 98-34010 Filed 12-22-98; 8:45 am]
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