After more than three years of effort, the education community appears poised to achieve an important victory in Congress: a rewrite of the distance-learning exemption to the copyright law to bring it into the digital age.
The current distance-learning exemption, adopted more than 30 years ago, makes it possible for courses that are broadcast directly to the classroom to include displays or performances of certain nondramatic literary and musical works without infringing copyright.
But in the internet age of rich multimedia and “anytime, anywhere learning,” this narrow exception makes little sense.
Earlier this year, the Senate adopted the Technology, Education, and Copyright Harmonization (TEACH) Act, or S. 487, which would allow educators to use much of the same rich material in distance learning over the internet that they are able to use in face-to-face classroom instruction, without the need for permissions or payments.
Notably, the TEACH Act would eliminate the requirement for a distance-learning copyright exemption that instruction occur in a physical classroom or that special circumstances such as illness prevent the attendance of a student in the classroom.
Additionally, it would extend the distance-learning exemption to the temporary copies, often known as “ephemeral” copies, necessarily made in networked services when transmitting material over the internet.
Finally, it would amend current law to allow educators to show “reasonable and limited portions” of dramatic literary and musical works, audiovisual works, and sound recordings, provided the material is to be used as an “integral part of the class experience.”
The exemption is a narrow one. It does not apply to digital versions of textbooks, course packs, or other material typically purchased or acquired by or for students, and it is limited to accredited educational institutions and only to students officially enrolled in the class. The expected change in the copyright law has not come easily.
The education and library communities pressed the case for the change during consideration of the Digital Millennium Copyright Act in 1998–legislation largely intended to strengthen the rights of copyright holders online at the expense of content users.
As a last-minute concession to the education and library communities, the bill’s sponsors included language directing the U.S. Copyright Office to make recommendations to Congress on how to promote distance education through digital technologies, and specifically to consider the need for a new copyright exemption for online distance education.
Many viewed the language as a way to push the issue to the legislative “back burner.” But at the conclusion of an intensive process, the Copyright Office released a strong “Report on Copyright and Digital Distance Education,” which concluded that specific changes in copyright law were sorely needed.
The report maintained that the distance-learning exemption was not written with the internet in mind and needed to be updated to accommodate distance education delivered over digital networks.
The report did little to soften opposition from the content community, however, and almost two years passed before any action was taken.
But earlier this year, then-Senate Judiciary Chairman Orin Hatch, R.-Utah, and Ranking Member Patrick Leahy, D.-Vt., made it clear that they planned to move on distance learning copyright legislation that closely reflected the U.S. Copyright Office’s new recommendations.
Hatch and Leahy wasted little time, holding a hearing on the issue in March and vowing to bring the bill to the Senate floor quickly. Their resolve brought a previously reluctant content community to the bargaining table and created a bill acceptable to all parties.
By the time the TEACH Act was considered by a House Judiciary subcommittee, all the witnesses–educators and content owners alike–spoke in favor of the bill. With no opposition and strong bipartisan support, the TEACH Act could be slated for passage this fall.
In the final analysis, the TEACH Act will bring not just a new set of rights to educators, but a new set of responsibilities as well.
First, the legislation requires transmitting institutions to adopt policies regarding copyright and to educate faculty and students about copyright compliance.
Second, educators and administrators need to fully understand the scope and limitations of the new law.
The TEACH Act is not a license to ignore copyright, nor is it a wholesale exemption for use of copyrighted materials in online learning. Rather, it is a narrowly tailored measure intended to make online education more robust and affordable.
There are significant limitations in the measure, which must be carefully interpreted, understood, and respected.
Like most copyright measures, the TEACH Act provides a blueprint for lawful conduct but does not answer every question or anticipate every set of facts. It will be up to the educational institutions and their counsels in the first instance to navigate the often-murky shoals of interpretation and to make sure those interpretations are followed by online educators and students.
At the same time, content providers also will need to become familiar with the new exemption and to recognize that new lines have been drawn that give educators more latitude to freely use portions of their content.
Finally, the proposed law requires educational institutions to “apply technological measures” that “reasonably prevent” the irresponsible use of intellectual property in online courses, particularly the dissemination of materials to third parties outside the distance-learning process.
While the requirement does not mean that each institution claiming the exemption must use the most cutting-edge or expensive technology, they must at least employ password protection, streaming video, and other software solutions aimed at insulating courses from violations.
What’s more, neither educators nor students may interfere with copy protections placed on a work by the copyright holder.
In the end, if educators fail to take these responsibilities seriously, they will put his hard-won exemption at risk.