Statement of Marybeth Peters
The Register of Copyrights
before the
Web-Based Education Commission
United States Senate
106th Congress, 2nd Session
July 20, 2000
Web-Based Education
Thank you for the invitation to testify before the Commission today. As you
may know, in the Digital Millennium Copyright Act of 1998, the Copyright Office
was requested by Congress to conduct a study on the application of copyright
law to distance education through digital technologies. The Office was asked
to report back in six months to Congress on ways to promote distance education.
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. Copies of the Report were sent to this Commission. 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 have summarized the Report in this statement.
Last year, hearings on the Report were held in both the House and the Senate.
No bill addressing this issue has yet been introduced.
I would like to provide you with a brief update of developments in relevant
fields that have occurred in the year since we submitted our Report. One of
the findings in that Report was that there were two areas in which significant
developments might change the need for an exemption in the future. Those two
areas were: (1) the difficult licensing environment for the use of copyrighted
works in digital distance education; and (2) the lack of commercially available
technological protection measures to protect works used in digital distance
education. We reported that educational institutions attempting to license
works for digital distance education experienced problems such as difficulty
in locating copyright owners, inability to obtain timely responses or unreasonable
prices or other terms. This was a factor in our recommendation to expand certain
aspects of current educational exemptions. We also found that technological
protections necessary to protect copyright owners from the risks of unauthorized
academic use were not yet developed enough to warrant a broad exemption. Therefore,
we recommended that the effectiveness of the exemption be delayed until such
time as sufficient technological protections were available in the academic
market.
These areas continue to develop. However, to our knowledge, neither field,
licensing or technology, has evolved sufficiently to change the nature of
our recommendations. We continue to be presented with anecdotal evidence of
licensing problems in the academic market, although digital distance education
continues to grow as a field, with more and more online courses available.
Publishers report making advances regarding so-called "orphan works," which
will make it easier for an applicant for a license for a published work to
locate its owner, and cite to an increase in the number of businesses in the
online rights management field as evidence of the advent of a more effective
licensing process for the digital arena. However, it would appear that the
major problems identified in our Report still remain, notwithstanding that
there has been some improvement overall in licensing for digital distance
education uses since we submitted our Report to Congress.
Technologies to protect works have similarly evolved, becoming ever more
prevalent in the licensing and use of copyrighted works in the digital environment.
However, to our knowledge, effective technological protections for high-value
content, including music and audiovisual works, have not yet been deployed
in the commercial marketplace, much less been adapted for use in an academic
context.
In conclusion, while some progress has been made in both of these keys areas,
there is not yet evidence that the balance of interests identified in our
Report has shifted.
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:
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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.
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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.
