Statement of Marybeth Peters
The Register of Copyrights
before the
Subcommittee on Courts and Intellectual Property
Committee on the Judiciary
United States House of Representatives
106th Congress, 1st Session
June 24, 1999
Copyright and Digital Distance Education
Over the past five years, the application of
copyright law to distance education using digital technologies has become the
subject of public debate and attention in the United States. In the Digital
Millennium Copyright Act of 1998 (DMCA), Congress charged the Copyright Office
with responsibility to study the issue and report back with recommendations
within six months. On May 25, 1999, after
an intensive process of identifying stakeholders, holding public hearings and
meetings around the country, soliciting comments, conducting research, and
consulting with experts in various fields, The Copyright Office submitted its
report, entitled "Copyright and Digital Distance Education," to
Congress. In that Report the Office recommended several amendments to the
Copyright Act to update the current educational exemptions to cover certain
educational activities taking place through digital technologies.
I. The Nature of Distance Education Today
Distance education in the United States today is
a vibrant and burgeoning field. Although it is far from new, digital
technologies have fostered a rapid expansion in recent years, as well as a
change in profile. The technologies used in distance education, the populations
served, the institutions offering such programs, and the partnerships that have
emerged differ in nature and scale from earlier models.
The most fundamental definition of distance
education is a form of education in which students are separated from their
instructors by time and/or space. Distance education is utilized in some form at
every level of the educational spectrum, with the most extensive use in higher
education. An individual course may contain both classroom and distance
education components. Digital technology is used extensively for varied purposes
and in varied ways, depending on the intended audience for the course, and the
availability and cost of the technology. The capabilities of the new
technologies have made possible a more interactive experience that more closely
parallels face-to-face teaching--in effect creating a virtual classroom. They
have also made distance education courses more convenient and better suited to
the needs of different students, including by providing the benefits of both
synchronous and asynchronous methods.
Distance education is reaching wider audiences,
covering all segments of the population. The college audience is increasing
particularly rapidly, in part due to responsiveness to the needs of an older,
non-traditional student population, as well as students in other countries.
Students also include professionals engaging in professional development or
training, and retirees. The expansion of the field has led to changes among
providers, with courses offered by both nonprofit and for-profit entities, on
both a nonprofit and for-profit basis, and through varieties of partnerships
among educational institutions and corporations. The federal government has been
active in promoting the benefits of distance education, with recent legislation
providing funding and recognition in various forms.
Educational institutions offering distance
education draw on library resources in several ways, including to provide
support for online courses and to provide access to supplemental materials in
digital form. Institutions are engaged in adopting copyright policies, training
faculty and staff, and educating students about copyright law. They are
increasingly seeking and obtaining formal accreditation.
II. Licensing of Copyrighted Works
Although substantial licensing activities are
taking place today in connection with the provision of materials to distance
education students, so far relatively few licenses are requested or granted for
digital uses. Most licensing relates to supplemental materials in analog form,
or, increasingly, in digital form; the least common type of licensing is for
digital uses of copyrighted works incorporated into the class itself. Most of
the works licensed for digital use are textual materials; licenses for other
types of content are much less frequent. As an alternative to seeking a license,
an educational institution may avoid the use of preexisting copyrighted works in
distance education courses, or may rely on exemptions in the copyright law.
There is wide diversity in licensing procedures among educational institutions
and copyright owners. In general, the more resources devoted to licensing, and
the more centralized the responsibility, the more efficient and successful the
process.
Many educational institutions describe having
experienced recurrent problems with licensing for digital distance education,
primarily involving difficulty locating the copyright owner, inability to obtain
a timely response, or unreasonable prices or other terms. The problems are
reported to be most serious with respect to journal articles and audiovisual
works. They appear to be exacerbated in the digital context, which may be
explained in part by the perception of copyright owners that the risks of
unauthorized dissemination are greater, and in part by the elements of novelty
and unfamiliarity.
A number of trends may facilitate the
development of more effective digital licensing in the near future, including
advances in technology used to protect works, the use of electronic copyright
management information, and online licensing systems. New collective initiatives
should also ease the licensing process for many types of uses. As digital uses
become more common and familiar, copyright owners are becoming more flexible. It
is difficult to predict the extent to which licensing problems will subside or
how long the improvement will take, but given the current state of development
of these trends, a more definitive evaluation will be possible in the next few
years.
III. Technologies Involved in Digital Distance Education
Technology that facilitates licensing includes
the ability to attach information to a work in digital format, and online rights
and permissions services supporting a range of license and delivery functions. A
number of different delivery technologies are used in distance education today,
including traditional media used to carry digital information, such as digital
television broadcasts or videoconferencing. These may be used in combination
with digital network technology, such as computer connections between students
and instructors.
The computer is the most versatile of distance
education instruments, since it can perform the same function as a television or
telephone, but also provide more interactivity, deliver more content, and
support more comprehensive services. Computers can be used to transmit texts and
graphics, connect users in a variety of real-time and asynchronous dialogues,
deliver messages between users, and receive both audio and video transmissions.
There is no "typical" digital distance
education course. Instructors sometimes build courses from scratch, and
sometimes customize templates provided by commercial software. They may combine
any or all of the technological tools available today, including e-mail,
threaded discussions, chat rooms, whiteboard programs, shared applications,
streaming video or audio, video or audio files, course management
infrastructure, links to websites, and interactive CD-ROMs and DVD-ROMs. In
addition, programs for self-paced independent learning may be obtained from
commercial vendors or through an educational institution.
The need to provide technological security for
copyrighted works in the digital environment has been recognized in all sectors,
not just for distance education. Technology companies and content providers are
working to develop commercially viable protection technologies, and industries
are collaborating to develop standards. Some technologies limit access to works;
others prevent or detect uses of works after access. Each method varies in its
cost and degree of security; although many are highly effective, none provides
absolute certainty. The goal is to provide a high enough level of protection
that the cost of circumvention outweighs the value of access to the material
protected.
Educational organizations can, and commonly do,
limit access to students enrolled in a particular class or institution through
several different methods used separately or in combination: password
protection, firewalls, screening for IP addresses or domain names, hardware
connections, encryption, or using CD-ROMs as a delivery mechanism.
After access has been gained, however, material
is available to students for further use, including downloading or electronic
distribution. Technologies that address such downstream uses do exist today,
with several on the market, others expected to be released very soon, and others
projected for release in the next year. Most, but not all, are designed to
handle a single type of content. The most effective are secure
container/proprietary viewer technologies, which allow copyright owners to set
rules for the use of their works, which are then attached to all digital copies,
and prevent anyone from making a use that is not in accordance with the rules.
For example, students could be allowed to view the work or print a single copy,
but not to save it to disk or distribute it to others electronically. Streaming
formats, which do not facilitate the making of copies, and the use of low
resolution digital copies, also offer some degree of protection against
redistribution.
Technologies for embedding information in
digital works to identify and track usage are also in development and use, with
the practice of digital watermarking the most effective. Using commercially
available software or services, these identifiers can be used as a search object
to find unauthorized copies of some types of works on the World Wide Web.
Significant developments are occurring in all of
these areas, and a few generalizations can be made. More efficient licensing
mechanisms will become more widespread, and delivery systems will become more
efficient, sophisticated and interoperable. Developments in protecting content
are harder to predict. In the near future it will be technically possible to
protect works against both unauthorized access and dissemination with a high
degree of effectiveness. Because it remains to be seen whether technologies to
prevent downstream uses will gain widespread market acceptance, the extent to
which they will be available in practical form for use in digital distance
education at any given point in time is unclear.
IV. Application of Copyright Law to Distance Education
Different copyright rights are implicated by
different educational activities, depending in part on the technologies used.
When a performance or display of a work is accomplished by means of a digital
network transmission, temporary RAM copies are made in the computers through
which the material passes, by virtue of the technological process. As a result,
not only the rights of public performance or display are implicated, but also
the rights of reproduction and/or distribution. This does not mean that the use
is necessarily an infringement. Permission to use the work could be granted by
the copyright owner, either through an express license or implied from the
circumstances. If not, the use may fall within one of the various exemptions in
the Copyright Act.
Three exemptions together largely define the
scope of permitted uses for digital distance education: two specific
instructional exemptions in section 110, and the fair use doctrine of section
107. Sections 110(1) and (2) together were intended to cover all of the methods
by which performances or displays in the course of systematic instruction take
place. Section 110(1) exempts the performance or display of any work in the
course of face-to-face teaching activities. Section 110(2) covers the forms of
distance education existing when the statute was enacted in 1976, exempting
certain performances or displays in the course of instructional broadcasting.
Both subsections contain a number of limitations and restrictions. In
particular, the section 110(2) exemption from the performance right applies only
to nondramatic literary and musical works (although the display right exemption
applies to all categories of works). Section 110(2) also contains limitations on
the nature and content of the transmission, and the identity and location of the
recipients. The performance or display must be made as a regular part of
systematic instructional activity by a nonprofit educational institution or
governmental body; it must be directly related and of material assistance to the
teaching content; and it must be made primarily for reception in classrooms or
places of instruction, or to persons whose disabilities or other special
circumstances prevent their attendance in classrooms, or to government
employees.
As written, section 110(2) has only limited
application to courses offered over a digital network. Because it exempts only
acts of performance or display, it would not authorize the acts of reproduction
or distribution involved in this type of digital transmission. In addition,
students who choose to take a distance course without special circumstances that
prevent their attendance in classrooms may not qualify as eligible recipients.
Fair use is the broadest and most general
limitation on the exclusive rights of copyright owners, and can exempt distance
education uses not covered by the specific instructional exemptions. It is
flexible and technology-neutral, and continues to be a critical exemption for
educational users in the digital world. It requires courts to examine all the
facts and circumstances, weighing four nonexclusive statutory factors. While
there are not yet any cases addressing the application of fair use to digital
distance education, a court's analysis will depend on elements such as the
subject matter of the course, the nature of the educational institution, the
ways in which the instructor uses the material, and the kinds and amounts of
materials used. Guidelines have in the past been negotiated among interested
parties to provide greater certainty as to how fair use applies to education;
such guidelines for certain analog uses were included in legislative history
around the time of enactment of the Copyright Act.
Other exemptions in the Copyright Act may exempt
some distance education uses in limited circumstances, but do not significantly
expand the scope of permitted instructional uses in a digital environment. These
include the ephemeral recordings exemption in section 112, the limitations on
exclusive rights in sound recordings in section 114, and the exemption for
certain secondary transmissions in section 111. Compulsory licenses could permit
distance educators to use some works in limited ways, but are not likely to be
much used.
Two titles of the DMCA are also relevant, one
providing limitations on the liability of online service providers and the other
establishing new technological adjuncts to copyright protection. While these
provisions do not affect the scope of permitted digital distance education uses,
they add a degree of security for both educational institutions and copyright
owners disseminating and licensing material in the digital environment. New
section 512 of the Copyright Act provides greater certainty that educational
institutions providing network access for faculty, staff, and students will not,
merely by doing so, become liable for infringing material transmitted over the
network. New Chapter 12 contains a prohibition against various forms of
circumvention of technological measures used by copyright owners to protect
their works, and a provision protecting the integrity of copyright management
information.
The international context raises two separate
issues: treaty obligations and the impact of any amendments abroad. The major
treaties that impose obligations on the United States with respect to copyright
are the Berne Convention and the TRIPs Agreement. Both contain rules governing
the permissibility of exceptions to copyright owners' rights. Any new or amended
exemption for distance education should be drafted to be compatible with these
standards. In addition, the enactment of any new exemption will have an impact
abroad, primarily due to doctrines of choice of law. When an educational
institution in the United States transmits courses to students in other
countries, it is unclear whether U.S. law will apply to such transmissions, or
the law of the country where the transmission is received, making it difficult
for educators to determine what uses of works are permissible. Other countries
are also making or considering amendments to their copyright laws to address
digital distance education.
V. Prior Initiatives Addressing Copyright and Digital Distance Education
Two different initiatives begun in 1994 sought
to develop guidelines interpreting the application of fair use to educational
uses through digital technology. One group, initiated by the Consortium of
College and University Media Centers (CCUMC) and the Agency for Instructional
Technology, issued a set of guidelines in 1996 addressing the use of portions of
copyrighted works in educational multimedia projects created by educators or
students as part of systematic learning activity at nonprofit educational
institutions. The other group, established by the Conference on Fair Use (CONFU)
convened by the Administration's Information Infrastructure Task Force, prepared
draft guidelines relating to the performance and display of copyrighted works in
distance learning classes of nonprofit educational institutions, not including
asynchronous delivery over computer networks. CONFU considered both sets of
guidelines as proposals, but did not formally adopt either of them. A number of
organizations and companies, however, have endorsed one or both sets of
guidelines, or use them as a reference.
In 1997, the issue of copyright and digital
distance education was raised in Congress by the introduction of bills in the
House and Senate proposing an amendment to section 110(2). The amendment would
have clarified that the exemption covered digital transmissions, and would have
broadened its scope, removing the limitation on categories of works covered,
adding the right of distribution, and removing the requirement that the
transmission be made primarily for reception in classrooms and by people unable
to attend classrooms. No floor action was taken on these bills, but they became
the subject of discussion in the Senate during consideration of the WIPO
Copyright and Performances and Phonograms Treaty Implementation Act. After
intensive discussions among interested parties, it became clear that many
complex and interrelated issues were involved that could not be given adequate
consideration in the time available. Congress therefore provided for a
longer-term study in section 403 of the DMCA.
VI. Should Current Law Be Changed?
A. The Views of the Parties
The educational community (including both
educators and academic libraries) believes that a change in the law is required
to optimize the quality and availability of forms of distance education that
take full advantage of today's technological capabilities. Members of this
community argue that fair use is uncertain in its application to the digital
environment, and that the exemptions in section 110 are outmoded and do not
extend to the full range of activities involved in digital distance education.
They report that licensing for such uses is not working well, and therefore does
not offer a satisfactory alternative. Some educators also note that distance
education is already an expensive proposition, involving substantial start-up
and maintenance costs, and warn that adding the cost of licensing fees for
copyrighted materials could make it prohibitive.
Copyright owners, on the other hand, do not
believe statutory amendment is necessary or advisable, pointing out that digital
distance education is flourishing under current law. They see the fair use
doctrine as strong and healthy, and are concerned that expanding the section 110
exemptions would harm both their primary and secondary markets. They assert that
more efficient licensing systems are developing, and that the reported
difficulties in obtaining permissions will ease with time and experience.
Finally, they argue that educators who wish to use preexisting copyrighted
content in their courses should regard licensing fees as one of the costs of
distance education, comparable to the purchase of the necessary hardware and
software.
There is virtual unanimity that the doctrine of
fair use is fully applicable to uses of copyrighted works in the digital
environment, including in distance education. (This does not mean that all agree
as to which digital distance education activities would qualify as fair.) As to
the role of guidelines, the messages were mixed. Many copyright owners recommend
pursuing the development of guidelines regarding the fair use of copyrighted
materials in digital distance education, and suggest that further discussion
could be productive in achieving greater mutual understanding and certainty.
Educational and library groups were less positive, expressing varying views.
Some educators see guidelines as valuable guides to decisionmaking; other
participants are critical of the concept or doubtful about the efficacy of any
results.
As to the specific instructional exemptions,
copyright owners argue that section 110(2) should not be changed. They are
concerned that a broadening of the exemption would result in the loss of
opportunities to license works for use in digital distance education -- a new,
growing, and potentially lucrative market. They urge that Congress not foreclose
the potential market by legislating prematurely or overbroadly.
The other major concern of copyright owners is
the increased risk of unauthorized downstream uses of their works posed by
digital technology. When works are distributed in digital form, once a student
obtains access, it is easy to further distribute multiple copies to
acquaintances around the world. Depending on the type of work involved and the
amount used, the result could be a significant impact on the market for sales of
copies.
Most educational and library groups, in
contrast, support a broadening of section 110(2). They view fair use alone
as either not clear enough or not extensive enough in its application. Their
primary goals are to avoid discrimination against remote site students in their
educational experience vis-a-vis on-site students; to avoid discrimination
against new technologies vis-a-vis old ones; and to avoid the difficulties in
licensing that many describe having experienced. In general, the educational
community seeks the following changes: (1) elimination of the concept of the
physical classroom as a limitation on the availability of the exemption; (2)
coverage of rights in addition to performance and display, at least to the
extent necessary to permit digital transmissions; and (3) expansion of the
categories of works covered, by broadening the performance right exemption to
apply to works other than nondramatic literary and musical works. Some would go
further, advocating an exemption that allows educators to do anything by means
of digital transmission that they can do in the classroom under
section 110(1). Libraries in particular also seek exemptions for additional
activities, stressing the importance of being able to give access to electronic
reserves and other resource materials in order to provide a high-quality
educational experience for students at remote sites.
As to the risks involved, educational
institutions are willing to take steps to safeguard the security of the
materials they disseminate. In fact, they point out that they already make such
efforts; the use of password protection and other access controls is widespread.
Many also require compliance with copyright policies and inform students,
faculty and staff about the law. Finally, educators believe that licensing
should continue to play some role in distance education.
B. Analysis and Recommendations
The analysis of whether the law should be
changed is complicated by the context: a time of rapid development in both
technologies and markets. While such rapid development is a hallmark of the
digital age, in the area of distance education we are at a particularly crucial
point in time. Sophisticated technologies capable of protecting content against
unauthorized post-access use are just now in development or coming to market,
although it is not clear when they will be widely available in a convenient and
affordable form that can protect all varieties of works. Meanwhile, licensing
systems for digital distance education are evolving, including online and
collective licensing mechanisms, and initial fears are beginning to ebb.
Many of the concerns on all sides stem from the
inability to depend on the effective functioning of technological protections
and licensing mechanisms. If technology were further along, broadened exemptions
could be less dangerous to copyright owners; if licensing were further evolved,
broadened exemptions could be less important for educators. The technical tools
for both exist today; it will be clearer within the next few years how
successfully they can be integrated into the real world of distance education.
Given the timetable of the legislative process, the question is what steps
Congress can and should take in the interim.
Over the course of this study, numerous issues
have been raised and discussed. Given the limited time allotted, the specific
mandate for the Register to consider primarily "the need for an exemption
from exclusive rights of copyright owners for distance education through digital
networks," and the origin of that mandate in proposed amendments to section
110(2), our analysis focuses on the appropriate treatment under copyright law of
materials delivered to students through digital technology in the course of
mediated instruction. We do not address other uses of copyrighted works in the
course of digital distance education, including student use of supplemental or
research materials in digital form; the creation of multimedia works by teachers
or students; and the downloading and retention of materials by students. Such
activities, although an important part of digital distance education, do not
involve uses analogous to the performances and displays addressed in section
110(2).
As a fundamental premise, the Copyright Office
believes that emerging markets should be permitted to develop with minimal
government regulation. When changes in technology lead to the development of new
markets for copyrighted works, copyright owners and users should have the
opportunity to establish mutually satisfactory relationships. A certain degree
of growing pains may have to be tolerated in order to give market mechanisms the
chance to evolve in an acceptable direction. At some point, however, existing
but dysfunctional markets may require adjustments in the law. Timing is
therefore key.
The desire to let markets evolve does not mean
that the law must remain frozen. Where a statutory provision intended to
implement a particular policy is written in such a way that it becomes obsolete
due to changes in technology, the provision may require updating if that policy
is to continue. Doing so may be seen not as preempting a new market, but as
accommodating existing markets that are being tapped by new methods. In the view
of the Copyright Office, section 110(2) represents an example of this
phenomenon.
The exemptions in sections 110(1) and (2) embody
a policy determination that performances or displays of copyrighted works in the
course of systematic instruction should be permitted without the need to obtain
a license or rely on fair use. The technological characteristics of digital
transmissions have rendered the language of section 110(2) inapplicable to the
most advanced delivery method for systematic instruction. Without an amendment
to accommodate these new technologies, the policy behind the law will be
increasingly diminished.
At the same time, it must be borne in mind that
existing law was crafted to embody a balance of interests between copyright
owners and users of works. In order to maintain a comparable balance, the
coverage of an exemption cannot be expanded without considering the impact of
the expansion on markets for copyrighted works. If the law is updated to address
new technology, the risks posed by that technology must be adequately taken into
account.
Updating section 110(2) to allow the same
activities to take place using digital delivery mechanisms, while controlling
the risks involved, would continue the basic policy balance struck in 1976. In
our view, such action is advisable.
Other amendments have been suggested that would
go further, and entail varying degrees of change in legislative policy. These
include expanding the exemption to cover more categories of works or additional
exclusive rights beyond those necessary for digital delivery, and otherwise
resolving problems experienced in the licensing process. Here, the elements of
timing and burden of proof are critical. From a pedagogical perspective, these
suggested expansions are desirable. From a copyright owner's perspective, they
endanger primary or secondary markets for valuable works. The question should
not be whether users have established a need to expand the exemption, any
more than whether copyright owners have established a need to retain its
limits, but rather whether given current conditions, the policy balance struck
in 1976 should be recalibrated in certain respects.
We conclude that some policy recalibration may
be appropriate at this point, relating primarily to categories of works covered.
In other areas, we believe that existing restrictions should be retained and
markets permitted to evolve, subject to further review. Critical to this
conclusion is the continued availability of the fair use doctrine as a safety
valve.
1. Recommendations as to Statutory Language.
In order to accomplish the goal of updating the
language and the policy balance of section 110(2), the Copyright Office offers
the following recommendations:
(a) Clarify meaning of
"transmission." It should be clarified through legislative
history that the term "transmission" in section 110(2) covers
transmissions by digital means as well as analog.
(b) Expand coverage of rights to extent
technologically necessary. Because the exemption in its current form
permits only acts of performance and display, digital transmissions over
computer networks would not be excused. We therefore recommend expanding the
scope of the rights covered, in order to add those needed to accomplish this
type of transmission. The rights of reproduction and/or distribution should not
be added in their entirety, but only to the extent technologically required in
order to transmit the performance or display authorized by the exemption.
(c) Emphasize concept of mediated
instruction. An exemption that includes elements of the reproduction right
so as to allow a student to access individual works asynchronously raises an
unintended problem. If an entire work can be viewed on a computer screen,
repeatedly, whenever a student chooses and for an indefinite duration, the
performance or display could conceivably function as a substitute for the
purchase of a copy. In updating section 110(2), it is therefore critical to
ensure that the performance or display is analogous to the type of performance
or display that would take place in a live classroom setting. This might be
accomplished by amending paragraph (A) of section 110(2), which requires the
performance or display to be "a regular part of . . . systematic
instructional activities," to focus on the concept of mediated instruction.
Additional language could specify that the performance or display must be made
by or at the direction of an instructor to illustrate a point in, or as an
integral part of, the equivalent of a class session in a particular course.
(d) Eliminate requirement of physical
classroom. In its current form, section 110(2) requires transmissions to be
sent to a classroom or similar place normally devoted to instruction, or to
persons who cannot attend a classroom. The nature of digital distance education,
where the goal is to permit instruction to take place anywhere, makes this
limitation conceptually and practically obsolete. Eliminating the physical
classroom limitation would better reflect today's realities.
At the same time, it is important to retain
meaningful limitations on the eligible recipients; the performances or displays
should not be made available to the general public. We recommend permitting
transmissions to be made to students officially enrolled in the course,
regardless of their physical location. Since today's digital and scrambling
technologies allow transmissions to be targeted more precisely, the requirement
should be added that the transmission must be made solely, to the extent
technologically feasible, for reception by the defined class of eligible
recipients.
(e) Add new safeguards to counteract new
risks. Because the transmission of works to students in digital form poses
greater risks of uncontrolled copying and distribution, a broadened exemption
could cause harm to markets beyond the primary educational market. It is
therefore critical, if section 110(2) is expanded to cover digital
transmissions, that safeguards be incorporated into the statute to minimize
these risks. We recommend including a number of safeguards as conditions on the
applicability of the exemption: First, any transient copies permitted under the
exemption should be retained for no longer than reasonably necessary to complete
the transmission. Second, those seeking to invoke the exemption should be
required to institute policies regarding copyright; to provide informational
materials to faculty, students, and relevant staff members that accurately
describe and promote compliance with copyright law; and to provide notice to
students that materials may be subject to copyright protection.
Third, when works are transmitted in digital
form, technological measures should be in place to control unauthorized uses. In
order to effectively limit the risks to copyright owners' markets, these
measures should protect against both unauthorized access and unauthorized
dissemination after access has been obtained. The exemption should require the
transmitting institution to apply such measures, described in simple and
technology-neutral language. Because no technology is one hundred percent
effective, only measures that "reasonably" prevent these acts should
be required. In addition, the law should impose an obligation not to
intentionally interfere with protections applied by the copyright owners
themselves. If copyrighted works are to be placed on networks, and exposed to
the resulting risks, it is appropriate to condition the availability of the
exemption on the application of adequate technological protections.
(f) Maintain existing standards of
eligibility. An educational institution must be "nonprofit" to be
eligible for the exemption in section 110(2). There was extensive debate over
the appropriateness of retaining the "nonprofit" requirement, and/or
adding a requirement of accreditation. In the area of digital distance
education, the lines between for-profit and nonprofit have blurred, and the
issue has arisen as to how to guarantee the bona fides of an entity that is
entitled to the exemption at a time when anyone can transmit educational
material over the Internet. The Copyright Office is not convinced at this point
that a change in the law is desirable, given the policy implications of
permitting commercial entities to profit from activities using copyrighted works
without compensating the owners of those works; the potential inconsistency with
other provisions of the Act, including section 110(1), that refer to
"nonprofit educational institutions"; and the DMCA mandate to consult
specifically with nonprofit educational institutions and nonprofit libraries and
archives. This is nevertheless an important and evolving issue that deserves
further attention.
(g) Expand categories of works covered.
One of the most difficult issues to resolve is whether to expand the categories
of works exempted from the performance right beyond the current coverage of
nondramatic literary and musical works. On the one hand, pedagogical
considerations militate against continuing to limit the types of works covered.
On the other hand, the existing distinctions have been embedded in the law for
more than twenty years, based on the potentially greater market harm to works
such as dramatic works or audiovisual works. The question is why this policy
judgment should be altered now.
The main categories of works that could be
affected by an expansion are audiovisual works, sound recordings, and dramatic
literary and musical works. In terms of primary markets, educational licensing
may represent a major source of revenue only for educational videos. The
potential effect on secondary markets, however, remains a serious concern for
all such works. This concern has been exacerbated beyond the threats perceived
in 1976 by the capacities of digital technology. For entertainment products like
motion pictures, transmission could well substitute for students paying to view
them elsewhere, and if digital copies can be made or disseminated, could affect
the broader public market.
The considerations are different for sound
recordings than for other categories. Because there was no public performance
right for sound recordings when section 110(2) was enacted in 1976, educators
were free to transmit performances of sound recordings to students (assuming the
use of any other work embodied in the sound recording was authorized by statute
or license). When owners of sound recordings were granted a limited public
performance right in 1996, there was no discussion of whether sound recordings
should be added to the coverage of section 110(2). This issue thus represents a
new policy question that has not yet been considered, rather than a potential
change in a judgment already made.
It is the exclusion of audiovisual works,
however, about which educators express the strongest concern, in part due to
difficulties in obtaining licenses for digital uses from motion picture
producers. Moreover, as digital distance education uses more multimedia works,
which incorporate audiovisual works and may be considered audiovisual works
themselves, the failure to cover this category may have an increasing impact.
On balance we suggest a compromise. If
audiovisual and other works are added, it should be done in a limited way, with
greater restrictions than section 110(2) currently imposes. Thus, section 110(2)
could be amended to allow performances of categories in addition to nondramatic
literary and musical works, but not of entire works. An expanded exemption
should cover only the performance of reasonable and limited portions of these
additional works. It is important to note that under the current language of
section 110(2), the portion performed would have to be the subject of study in
the course, rather than mere entertainment for the students, or unrelated
background or transitional material. This requirement, combined with the
limitation on the amount of the work that could be used, should further serve to
limit any impact on primary or secondary markets.
It nevertheless may be advisable to exclude
those works that are produced primarily for instructional use. For such works,
unlike entertainment products or materials of a general educational nature, the
exemption could significantly cut into primary markets, impairing incentives to
create.
(h) Require use of lawful copies.
If the categories of works covered by section 110(2) are expanded, we recommend
an additional safeguard: requiring the performance or display to be made from a
lawful copy. Such a requirement is already contained in section 110(1) for the
performance or display of an audiovisual work in the classroom.
(i) Add new ephemeral recording exemption. Finally,
in order to allow the digital distance education that would be permitted under
section 110(2) to take place asynchronously, we recommend adding a new
subsection to section 112, the ephemeral recordings exemption. The new
subsection would permit an educator to upload a copyrighted work onto a server,
to be subsequently transmitted under the conditions set out in section 110(2) to
students enrolled in her course. The benefit of the new subsection should be
limited to an entity entitled to transmit a performance or display of a work in
digital form under section 110(2). Various limits should be imposed similar to
those set out in other subsections of section 112, including the requirements
that any such copy be retained and used solely by the entity that made it; that
no further copies be reproduced from it (except the transient technologically
necessary copies that would be permitted by section 110(2)); that the copy be
used solely for transmissions authorized under section 110(2); and that
retention of the copy be limited in time, remaining on the server in a form
accessible to students only for the duration of the course. In addition, the
reproduction should have to be made from a lawful copy. Finally, the entity
making the reproduction should not be permitted to remove technological
protections applied by the copyright owner to prevent subsequent unlawful
copying.
2. Clarification of Fair Use.
Because there is confusion and misunderstanding
about the fair use doctrine, including the function of guidelines, we believe it
is important for Congress to provide some clarification. The statutory language
of section 107 is technology-neutral, and does not require amendment. But if any
legislative action is taken with regard to distance education, we recommend that
report language explicitly address certain fair use principles.
First, the legislative history should confirm
that the fair use doctrine is technology-neutral and applies to activities in
the digital environment. It might be useful to provide some examples of digital
uses that are likely to qualify as fair. It should be explained that the lack of
established guidelines for any particular type of use does not mean that fair
use is inapplicable. Finally, the relationship of guidelines to fair use and
other statutory defenses should be clarified. The public should understand that
guidelines are intended as a safe harbor, rather than a ceiling on what is
permitted.
Although flexibility is a major benefit of the
fair use doctrine, the corollary is a degree of uncertainty. This drawback is
exacerbated by the context of new technologies, where little case law is
available. In the analog world, efforts such as the photocopying and off-air
taping guidelines have proved helpful in giving practical guidance for
day-to-day decisionmaking by educators. The Copyright Office believes that
additional discussion among the interested parties of fair use as applied to
digital distance education could be productive in achieving a greater degree of
consensus. In the past, efforts to develop guidelines have been successful where
a consistent group of participants worked within a structure established under
the auspices of a government agency, with some direction provided by Congress.
3. Licensing Issues.
The fact that digital technologies impose new
costs on delivering distance education does not itself justify abandoning or
regulating the long-standing licensing system. Digital distance education
entails the use of computer hardware and software, and the employment of trained
support staff, all of which cost money. Digital distance education may also
entail the use of preexisting copyrighted works. This content is at least as
valuable as the infrastructure to deliver it, and represents another cost to be
calculated in the equation.
The critical question here is whether the
markets in which distance educators participate are dysfunctional, and if so, to
a degree that calls for a legislative remedy. While the problems experienced in
licensing are not unique to digital distance education, they are heightened in
the digital context due to factors such as fear about increased risks; lack of
certainty as to the scope of pre-digital transfers of rights; and general
unfamiliarity with new uses. Many of these factors should diminish with time and
experience, and there are some indications that this is already happening. In
addition, online and collective licensing for digital uses will increasingly
facilitate transactions. Nevertheless, problems will persist for the foreseeable
future, as long as risks are perceived as high or benefits low.
One of the problems identified by educators has
special characteristics that can block the functioning of the marketplace. Where
the owner of the work simply cannot be located, there is no opportunity to
negotiate. Particularly because the problem of such "orphan works" may
become more acute due to longer copyright terms and the expanded audience for
older works made possible by digital technology, we believe that the time may be
ripe for Congressional attention to this issue generally.
We have not otherwise seen sufficient evidence
of a need for a legislative solution moving away from the general free market
approach of current law. Given the state of flux of online licensing systems and
technological measures, and the waning influence of the elements of fear and
unfamiliarity, problems of delay and cost may subside to an acceptable level. At
this point in time we recommend giving the market for licensing of nonexempted
uses leeway to evolve and mature. Because the field of digital distance
education is growing so quickly, and effective licensing and technologies may be
on the horizon, we suggest revisiting the issue in a relatively short period of
time.
4. International Considerations.
In making these recommendations, the Copyright
Office is mindful of the constraints of U.S. treaty obligations. In our view,
the relevant criteria of the Berne Convention and the TRIPs Agreement are
fundamentally in harmony with domestic policy considerations. We believe that
our recommendations are fully consistent with these criteria, and would not
alter the fundamental balance of either section 110(2) or 112, which have been
part of U.S. law for more than twenty years.
The balance struck in U.S. law will have an
importance beyond our borders, both through its potential application abroad and
as a model for other countries examining the issue. Whether a distance education
transmission initiated in one country and sent to a student in another country
constitutes an infringement, falls within a collective or compulsory licensing
scheme, or is exempted, will depend on which country's law a court applies. This
means both that the scope of the exemptions in the U.S. Copyright Act may have
an impact on foreign markets for U.S. works, and that U.S. copyright owners and
users have an interest in the scope of exemptions or statutory licensing rules
adopted in foreign laws.
|
