Statement of Marybeth Peters
The Register of Copyrights
before the
House Subcommittee on Courts, the Internet and Intellectual Property

United States House of Representatives
107th Congress, 1st Session

June 27, 2001

Technology, Education and Copyright Harmonization (“TEACH”) Act (S. 487)

I am pleased to present the Copyright Office's views on S. 487, the Technology, Education and Copyright Harmonization (“TEACH”) Act. First, I would like to express my thanks to Chairman Coble and Mr. Berman, Ranking Member, for holding this hearing. 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.

S. 487 is based on the Office's “Report on Copyright and Digital Distance Education.” Section 403 of the Digital Millennium Copyright Act directed the Copyright Office to consult with representatives of copyright owners, nonprofit educational institutions, and nonprofit libraries and archives, and to submit to Congress a report 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 needs of users. The Office was tasked with considering the following issues: 1) the need for a new exemption; 2) the categories of works to be included in any exemption; 3) the appropriate quantitative limitations on the portions of works that may be used under any exemption; 4) who should be eligible to use any exemption and who should be able to receive the materials delivered under any exemption; 5) the extent to which technological measures should be mandated as a condition of eligibility for any exemption, and; 6) consideration of the availability of licensing.

The Office's inquiry was extensive. It sought public comment, held public hearings in Washington, D.C., Los Angeles, California and Chicago, Illinois, conducted research and consulted with experts in various fields. It also commissioned a study on the licensing of copyrighted material in digital distance education. The report, delivered to Congress on May 25, 1999, contained a description of digital distance education, the licensing of works for such use and the technologies involved. It also included an in-depth analysis of the current law as it applied to distance education and a description of prior initiatives that had addressed the issues, as well as a summary of the views of the interested parties with our analysis and recommendations for legislative change. Some of our most important recommendations were to 1) amend section 110(2) to clarify that the term “transmissions” covered digital as well as analog; 2) expand the coverage of rights in section 110(2) to the those that are technologically necessary to allow the delivery of authorized performances and displays through digital technologies; 3) eliminate the requirement of a physical classroom but limit the exemption to students officially enrolled in a course; 4) emphasize the concept of “mediated instruction” to ensure that the exemption is limited to what is, as much as possible, equivalent to a live classroom setting; 5) keep the exemption limited to nonprofit educational institutions and consider adding the additional requirement of accreditation; 6) expand the categories of works exempted from the performance right but limit the amount that may be used in these additional categories to “reasonable and limited portions”; 7) require the use of lawfully made copies; 8) amend section 112 to provide for ephemeral copies; and 9) add a number of new safeguards to counteract the new risks encountered when works are transmitted in digital form. Of course, the fundamental principle of the Office was its belief that emerging markets should be permitted to develop with minimal government intervention. This subcommittee held a hearing on the report once it was released.

The Senate Judiciary Committee held a hearing on S.487 on March 13, 2001. In my testimony in that hearing I noted that the language of the bill raised a few issues. Additionally, educational institutions and copyright owners objected to some of the provisions and had questions about others. None of the identified issues or questions was easy to resolve, and at that point, the parties seemed far apart.

In late April, after the Senate hearing, the Office was asked to facilitate discussions among the interested parties with the goal of reaching consensus and was pleased to do so. Over several weeks, representatives of copyright owners, nonprofit educational institutions and nonprofit libraries met in lengthy sessions and negotiated many thorny issues. The sessions were at times difficult, but everyone was committed to the goal of reaching a fair, sound result. I commend those who participated in those sessions for their resolve and exceptional efforts. The result is a compromise that is balanced and that will benefit education.

The Copyright Office strongly supports the carefully negotiated compromise reflected in S.487 as passed by the Senate. Once again, Mr. Chairman, I appreciate this subcommittee's expeditious hearing on this bill.