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.
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