Chapter 31

Teachers and a Digital World: How the Classroom Has Changed

The Copyright Act Shows Its Age

By 1990, the Copyright Act of 1976 was showing its age. In a number of critical respects, the statute had fallen behind developments, but nowhere more clearly than in the case of distant education at the undergraduate and graduate level. Although the Internet had not reached the masses, it was a medium commonly used by higher education. Electronic courses were being offered by many institutions to link faculty and students in the United States and overseas. However, to the extent that course content and electronic transmissions incorporated third-party copyrighted works, Section 110(2) of the Copyright Act, the existing statutory exemption permitting transmission of public performances or displays of certain works to remote locations in connection with instruction, was inapplicable.

Section 110(2) was written for the children of the 1950s' Sunrise Semester. It did not address the use of computers in the classroom; rather, its focus was on closed-circuit television or the dedicated delivery of a live classroom to remotely located classrooms or similar places of education. While the exemption facilitated the common practice by institutions, such as state universities, of beaming courses taught by faculty in one branch of the system to receiving sets viewed by students located in other cities within the state system, it did nothing for those who employed computers to reach distant students.

During the congressional debate on the DMCA, representatives of educational interests, particularly universities and libraries, sought to add the issue of updating copyright law to address the evolution of distance education. From those discussions came a provision in the DMCA that authorized the Register of Copyrights to conduct a study of digital distance educational issues. Based on the Register's report, a bipartisan bill implementing copyright reform, affectionately dubbed The TEACH Act, was introduced by the key legislators controlling copyright law in the U.S. Senate, Senators Orrin Hatch (R-UT) and Patrick Leahy (D-VT).

For our purposes, distance education refers to any instruction that reaches students outside a physical classroom, and digital distance education is a version that involves the use of digitally networked computers to reach those students. In digital distance education, the students can be enrolled in a course at their school and use computers from their dorms or elsewhere on campus or they may be located in different cities.

Review of Distance Education in the 1976 Copyright Act

Four statutory limitations in the Copyright Act are the crucial legal foundation for current uses of copyrighted materials in the distance learning context. These provisions are Sections 110(1), 110(2), 112(b), and 107.

Section 110(1) is a limitation on the exclusive rights of owners covering the performance or display of a copyrighted work in connection with “face-to-face” classroom teaching. Under this limitation, any work that is the subject of copyright may be performed or displayed in class by an instructor or student during face-to-face teaching activities.

The only real qualification on the use of works inside a classroom is that, in the case of motion pictures, the work must be “lawfully acquired” to qualify for the face-to-face exemption. It is important to note that Section 110 deals only with “public performance” and “public display.” It does not address questions of “reproduction” or “public distribution.”

Section 110(2) is a further educational limitation on the public performance and public display rights of copyright owners. This provision permits the performance of a “nondramatic literary or musical work” or the display of a work in the course of a “transmission” if

• The performance or display is a regular part of the systematic instructional activities of a government body or nonprofit education institution.
• The performance or display is directly related and of material assistance to the teaching content of the transmission.
• The transmission is made primarily for

1. Reception in classrooms or similar places normally devoted to instruction.
2. Reception by persons to whom the transmission is directed because their disabilities or other special circumstances prevent their attendance in classrooms or similar places devoted to instruction.
3. Reception by officers or employees of government bodies as part of their official duties or employment.

In brief, Section 110(2) is the 1976 Act's “distance education” exception. While the requirements of Section 110(2) are subject to interpretation, the exemption by its terms does not expressly authorize the use of certain types of copyrighted works (such as motion pictures and other audiovisual works) and it does not exempt the reproduction or public distribution of works. Therefore, it fails to exempt the use of particular works and certain activities necessary for effective digital distance education in a computer-networked world.

Section 112(b) establishes the parameters for a limitation on the exclusive right of owners to control copying. The “ephemeral recording” exception permits educators to make a few copies of the classroom performance (e.g., videotapes of distant learning sessions) at a remote location for a limited time. The provision, which is expressly tied to Section 110(2), allows eligible institutions to make up to 30 copies of the transmission embodying the exempt performance or display and to keep those copies not more than 7 years (although an archival copy may be retained indefinitely). This allows students who missed the class to catch the video.

Fair Use Defense in the Educational Setting

To the extent that a performance, display, or other use of a copyrighted work is not covered by Section 110(2), an educational institution must fall back on the fair use provision to justify its use of works in a distant learning context. Recall that Section 107 is a broad and effective defense to many claims of copyright infringement. Fair use allows one who has exploited copyrighted works without consent of the owner to justify that use by resorting to a claim under recognized public purposes. Since these purposes include scholarship and research, digital distance education is a natural fit. Indeed, when Congress adopted the current copyright law, the committee reports explaining the bill specifically anticipated Section 107 would fill in the gaps covered by Sections 110(1) and 110(2). Among factors Congress expected to be considered in the fair use analysis are these:

• Whether the producers of the broadcast were paid.
• The size of the audience.
• The size and nature of the excerpts taken.
• The number of copies made and how they would be used and reused.

But fair use is not a “bright line” test. Therefore, unlike Section 110(2), which is an express exemption with specific requirements, fair use is a defense based on criteria that must be evaluated and judged according to the facts presented in each case. Nevertheless, since the 1976 Act's distance education exemption does not cover copying and public distribution, essential activities for use of the Internet in education, and does not cover many classes of works (e.g., audiovisual materials), most digital distant educational uses of copyrighted works must be evaluated under the fair use doctrine. This reality places a qualifying educational institution at risk, because certain uses may exceed the parameters of the fair use exception.

While it is rare for educational uses to inspire copyright litigation, a few cases of note involve analysis of the fair use defense in an educational setting. In one instance, Encyclopedia Britannica challenged a consortium of public school districts for recording motion picture works and providing copies to member schools. The schools lost the case, and their fair use defense was rejected.

Based on case law in other fair use cases, it is reasonable to conclude that educational uses made by nonprofit institutions that “transform” the work used (add meaning, context, explanation, or criticism) as opposed to merely reproduce the work (distributing a complete copy with no commentary) do better when the purpose and character of the use factor is evaluated. Courts also consider whether the work exploited is factual or creative, published or unpublished. The more factual and more widely released the work, the easier it is to justify fair use. Similarly, the intended market for the work and its ready availability are important facts. In the case of distant educational uses of textbooks produced for and accessible to the teaching marketplace, the doctrine may be severely limited or even unusable. “How much of the original work is used?” and “What impact could the use could have on the market for the original?” are vitally important questions in all fair use analyses. Thus, in a digital environment, the ability of students to receive and pass on perfect copies of an original text is a legitimate concern. The controls on access and further use imposed by the institution on students are highly relevant considerations.

If the user, who has the burden of justifying the fairness of the use, fails to persuade a court that the provision applies, then liability can attach. As we saw in Chapter 6, the damages and injunctive relief provisions of the Copyright Act include the potential recovery of actual damages and an accounting of profits. In the alternative, copyright law permits the owner to claim “statutory damages,” defined as $750–30,000 per work infringed, if infringement occurs after federal registration. Further, the statute allows for recovery of attorney's fees by the prevailing party. Since a typical distance education course could utilize many individual works, the exposure to many infringement damage claims is significant. One important protection for educational institutions is the qualification in the Copyright Act that instructs a court to not to assess statutory damages for educational uses if the institutional employees reasonably rely on the fair use defense.

As with all fair use defenses, schools may find such protection unavailable, based on particular facts. In sum, while fair use always is a relevant defense to any educational institution's use of third-party materials, most educators would prefer to know that a particular use is specifically exempt from liability and not subject to critical review based on the fair use criteria.

DMCA and the Copyright Office Study

In 1998, when educators were negotiating the terms of the DMCA, they seized the opportunity to place Section 110(2) on the agenda in hope of securing clearer protection for digital distant educational uses of copyrighted materials. As the DMCA negotiations moved forward, several digital distance education issues came into clearer focus, but complex questions remained; for example,

• Which institutions should receive the exemption?
• Who is a qualified student?
• What “works” are covered?
• How should the new provisions dealing with “technological protection measures” be treated?

With time drawing short on developing statutory language and pressure to pass the DMCA increasing, a compromise was struck at the urging of Senators Hatch, Leahy, and Ashbrook. The Copyright Office would be empowered to study digital distance education issues with the goal of proposing changes to copyright law. The three senators gave their commitment to follow through on legislative recommendations. Therefore, the DMCA contained a provision requiring the Register of Copyrights to provide Congress with its recommendations on “how to promote distance education through digital technologies, including interactive digital networks, while maintaining an appropriate balance between the rights of copyright owners and the needs of users of copyrighted works.”

Soon after implementation of the DMCA, the Register of Copyrights announced a proceeding to consult with representatives of copyright owners, nonprofit educational institutions, libraries, and archives, focusing on many factors, including

1. The need for an exemption from exclusive rights of copyright owners for distance education through digital networks.
2. The categories of works to be included in any exemption.
3. The extent of appropriate quantitative limitations on the portions of works that may be used under any distance education exemption.
4. The parties who should be entitled to the benefits of any exemption.
5. The parties who should be eligible to receive distance education materials under the exemption.
6. Whether and what types of technological measures can or should be employed to safeguard against unauthorized access to and use or retention of copyrighted materials as a condition of eligibility.
7. The extent to which the availability of licenses should be considered.

At public hearings, commercial publishers argued that they saw little if any reason to update the rules. They suggested that the marketplace for digital distant educational content will evolve and works will be made as readily available as other courseware. They expressed concern about individual and institutional misuse of copyrighted works and feared that an expansion of the statutory limitations would erode fledging enterprises. Libraries and educational institutions responded that, not only was the marketplace not functioning effectively, but also, and more important, the law should be updated to embrace current and projected digital distance educational uses.

The Copyright Office's report, released in May 1999, urged that the law be updated. The Copyright Office made the following key recommendations:

• Clarify the meaning of transmission. The term should cover digital as well as analog transmissions.
• Expand the coverage of rights to the extent technologically necessary. Since Section 110(2) covers only performance and display, it is necessary to add reproduction and distribution rights, but only to the extent technologically required to transmit the performance or display authorized by the exemption.
• Emphasize the concept of mediated instruction. A responsible member of the faculty needs to guide students working at their own place and time.
• Eliminate requirement of physical classroom. Since digital distance education does not require a classroom, elimination of a classroom as a statutory requirement is necessary. However, to prevent inappropriate availability to a larger audience, transmissions should be limited to students officially enrolled in a course.
• Add new safeguards to counteract new risks:

1. Transient copies should be retained only so long as reasonably necessary.
2. Copyright policies should be instituted and information on copyright compliance should be disseminated to faculty and students, together with notice that works used may be subject to copyright protection.
3. Technological measures associated with works should be included.
4. Maintain the existing standards of eligibility. The exception should be limited to qualified educational institutions, nonprofit institutions, and government bodies.
5. Expand the categories of works covered. The limited categories in current law should be expanded to include audiovisual works, sound recordings, and dramatic literary and musical works.
6. Require the use of lawful copies. The requirement in Section 110(1) that applies to motion pictures should be expanded to all works.
7. Add u new ephemeral recording exemption. To permit asynchronous use of works (use anytime a student wishes to log on, not at a specific hour of the day when the class meets in a room), Section 112(b) should be expanded to permit uploading copies of works onto a server for subsequent retransmissions to students.

Often, passing a legislative issue off to a study is the kiss of death. In the case of digital distance education, the recommendations were taken seriously by the legislators and action initiated in spring 2001.

The TEACH Act to Transform Digital Distance Education

With the encouragement of educational and library interests, Senators Hatch and Leahy prepared legislation to implement the Copyright Register's report. The TEACH Act (short for Technology, Education, and Copyright Harmonization Act) was introduced in spring 2001. The bill was designed to fully implement the recommendations of the Register of Copyrights.

After several days of hearings, the senators brought representatives of the educational and content communities together in a windowless room inside the Library of Congress. The parties were told to take the Copyright Office framework and work through relevant issues until a compromise was reached. After several weeks of intense negotiations supervised by the Copyright Office staff and periodically reviewed by Senate staff-negotiations that often lasted well past government office closing hours-the TEACH Act was finalized. The highlights of the bill are these:

• Expansion of covered works. All copyright works are covered within the digital distance education exception, except (1) those produced or marketed primarily for performance or display as part of mediated instructional activities transmitted by digital networks and (2) those not lawfully made and acquired when the qualified institution knew or had reason to know that fact.
• Rights affected. As with current law, performance and display rights are directly involved, but the manner of use of particular works is explained. With respect to performance, all nondramatic literary or musical works may be used, but only reasonable and limited portions of other works, such as movies and multimedia works may be exploited. Display of any work in an amount comparable to that typically displayed in a course during a live class session would be permitted.
• Eligible parties. The exemption applies to (1) government bodies and (2) accredited nonprofit educational institutions. Accreditation would be a new requirement and could eliminate some nonprofit institutions. The exemption would not be available for use by any for-profit institution. Recipients of the transmissions must be students officially enrolled in the course or qualified officers or employees of government bodies.
• Mediated instructional activities. A key concept that must underlie digital distance education is “mediated instructional activities.” These activities have several common characteristics: (1) the qualified works must be used as an integral part of the class experience and (2) an instructor must control or actually supervise the use, which is to be analogous to that in a live class. Activities that use in one or more class sessions works such as textbooks or course packs typically purchased by students for their use and retention (or at K-12 for student possession and independent use) are not covered.
• Copyright policies. Eligible institutions must institute copyright policies and apply reasonably effective technological measures to prevent retention beyond the allowable periods and unauthorized further dissemination. In addition, the institutions must not engage in activities that could reasonably be expected to interfere with technological measures used by copyright owners to prevent retention or further unauthorized distribution.
• Transient storage. Transient or temporary storage of materials is expressly allowed as part of the automatic, technical transmission process.
• Ephemeral copies. Copying necessary to effectuate the exemption is covered by the amendment to the ephemeral recording exception in Section 112(f). Eligible institutions are allowed to make copies or phonorecords of works that are needed in the transmissions.
• Digital versions. In addition, the institution can convert works in analog form to digital, if no digital version of a work is available or if the only digital version available is subject to technological measures that prevent permitted uses.

As the compromise was being finalized, the parties clarified a few additional points. First, legislative history refined certain elements of the agreement. For example, one agreed point is the understanding that not all educational materials or materials having educational value are works produced or marketed primarily for “mediated instructional activities.” Second, accredited educational institutions that are “for profit” are not included in the exception; however, the Register of Copyrights may conduct a study regarding their activities and could make recommendations in the future about their role in the exception.

The TEACH Act passed the Senate promptly in summer 2001 and was referred to and passed through the Copyright Subcommittee in the House. Then, the bill hit a brick wall. With the chairman of the House Judiciary Committee looking for action on another pet copyright proposal (database protection), the TEACH Act was put on a seat in the principal's office and told to “wait.” Throughout 2001, despite all the efforts of educators and legislators, action on the bill was stalled. Suddenly, in summer 2002, the logjam broke and the bill was voted out of the Judiciary Committee without any change. Final Congressional action occurred in October 2002.

The current distance education law is outdated. The new legislation serves an important public purpose, helping digital distance learning become a full-fledged participant in the educational process without unreasonable legal restraints on the use of materials online.