U.S. Copyright Office wants ‘fair use’ to cover distance learning: Proposal would let schools use digital media to transmit copyrighted materials

Schools engaged in distance learning via digital technologies would be able to use copyright-protected materials such as film clips, photographs, and literary excerpts without explicit permission from the copyright holder, under a proposal submitted to Congress by the U.S. Copyright Office.

The report, submitted to the U.S. Senate May 25, seeks to modernize a 1976 law that provided certain copyright exemptions for traditional classrooms and for distance education courses transmitted via broadcast television (analog technology).

The report also seeks to resolve an intense debate between educators and copyright holders over what constitutes “fair use” in the digital age. To protect copyright holders, the plan calls for schools to have safeguards in place to guard against unauthorized duplication and distribution of materials transmitted digitally.

The report, requested by Congress when the Digital Millennium Copyright Act was passed last October, was presented to a Senate panel by Marybeth Peters, head of the U.S. Copyright Office.

“When the current law was enacted, the members of Congress made a policy decision with respect to certain educational uses,” Peters told the panel. “We conclude (the law) is now obsolete, and to maintain that policy balance, you would have to update the law…and expand the rights to include reproduction of works across networks.”

Two key issues have muddied the playing ground for schools that want to use protected materials for internet-based distance education courses.

First, current law does not specifically exempt materials used in digital transmissions, only analog methods.

And second, the law expressly prohibits the reproduction and distribution of copyrighted works. This is important because materials transmitted over networks are duplicated and temporarily stored on the receiving computer’s hard drive.

“Without an amendment to accommodate these new technologies, the policy behind the law will be increasingly diminished,” the report stated.

But copyright holders don’t necessarily agree with that assessment.

“We believe the record created by the Copyright Office report could have justified the conclusion and recommendation that Congress take no action,” Allan Adler, vice president of the Association of American Publishers, told the New York Times.

Representatives of copyright holders argued at a hearing earlier this year that expanding the exemptions to cover digital transmissions would result in a loss of opportunities in the potentially lucrative distance education market and that distance educators should consider licensing fees as just another cost of providing distance education.

Educators, on the other hand, told the Copyright Office that distance education is already an expensive proposition–and that adding the cost of licensing fees for copyrighted materials could make it cost-prohibitive.

Distance educators also say there are too many kinks in the current licensing system, from recurring problems with locating the copyright owner or getting a timely response, to unreasonable prices or other terms.

Copyright holders, meanwhile, assert that more efficient licensing systems are being developed and that the reported difficulties in getting permissions will ease “with time and experience.”

They’re also wary of the increased risk of unauthorized duplication and distribution of materials posed by digital transmissions.

This underlying dilemma–schools having trouble with licensing systems, copyright holders concerned about the risks of unauthorized use of their materials–made the debate a difficult one for the Copyright Office to resolve.

“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 to educators,” the report said.

The Copyright Office said it would become clearer in the next few years how far both licensing systems and measures of protection will develop. Until that happens, the office said lawmakers should take the appropriate steps to bring the spirit of the original law up to date.

Here’s a rundown of the Copyright Office recommendations

€ Clarify the definition of “transmission” to cover transmissions by digital, as well as analog, means.

€ Expand the scope of permitted exemptions for the performance or display of copyrighted materials to the extent necessary for digital transmissions. Current law does not authorize reproduction and/or distribution of materials, but digital network transmissions automatically make temporary RAM (transient) copies in the computers through which the materials pass.

€ Emphasize the concept of “mediated instruction” to ensure materials are used in the same way they would be in a live classroom setting. The materials should be “a regular part of…systematic instructional activities” and should be used only at the direction of an instructor to illustrate a point.

€ Eliminate the “physical classroom” limitation on exemptions to permit transmissions to students regardless of physical location, though the report also recommended that language be added to ensure transmissions are made only to officially enrolled students.

€ Add new safeguards to counteract the risks presented by digital transmissions. First, transient copies permitted under the exemption should be retained for no longer than reasonably necessary to complete the transmission. Second, educators seeking exemptions should institute policies regarding copyrighted materials; provide information to faculty, students, and staff to promote compliance with copyright law; and provide notice to students that materials may be subject to copyright protection. And third, technological measures–such as password protection, firewalls, or encryption–should be in place to control unauthorized uses.

€ Maintain the existing standards of eligibility to include only nonprofit educational institutions.

€ Expand the categories of works eligible for exemptions. Currently, the law applies only to non-dramatic literary and musical works. The law would be expanded to cover dramatic literary works, as well as audiovisual works such as motion pictures. However, only portions of these works could be displayed under the exemption.

€ If categories of works are expanded, require that the performance or display be made from a lawful copy.

U.S. Copyright Office


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