A bill to bring copyright law into the Digital Age appears in jeopardy. In spite of bipartisan support, the measure appears likely to fall victim to the same terrorist attacks that brought down the World Trade Center.
Delayed in the rush of more-pressing congressional business, the legislationset to extend educators’ fair-use rights beyond the traditional classroomnow probably will be put off until next year at the earliest.
Senate bill S.487, the Technology Education and Copyright Harmonization (TEACH) Actonce considered a slam-dunk to sail through Congress this yearhas been languishing in the House Judiciary Committee since Sept. 11.
“My understanding is that almost every domestic issue is not going to be considered before the end of this year,” said Jee Hang Lee, senior legislative associate for Leslie Harris & Associates, which represents the Consortium for School Networking and the International Society for Technology in Education in legal matters.
“The only items on the agenda are [the Elementary and Secondary Education Act, or] ESEA; the [economic] stimulus package; the appropriations bill; and the anti-terrorist package,” Lee said.
The TEACH Act is intended to update the Copyright Act of 1976 and account for advancements in digital transmission technologies that support distance education.
The current fair-use provisions for distance education, as set out in the 1976 law, grant an exemption from copyright liability for “in-class performance, displays of certain copyrighted works, and the transmission of those performances to outside locations” via analog technology, such as broadcast television.
“Unfortunately, currently copyright law does not allow the sharing of many copyrighted materials for educational purposes through digital means,” such as satellite broadcasts, two-way videoconferencing, and internet-based courses, said Sen. Orrin Hatch, R-Utah, who introduced the bill in March along with Sen. Patrick Leahy, D-Vt.
If passed, the TEACH Act would:
• Eliminate the current requirement that the instruction occurs in a physical classroom or that special circumstances prevent the attendance of students in the classroom;
• Clarify that the distance-learning exemption covers the temporary copies that would need to be made in networked file servers to transmit material over the internet; and
• Amend the current law to let educators show limited portions of dramatic literary and musical works, audiovisual works, and sound recordings, in addition to complete versions of non-dramatic literary and musical works, which currently are exempted.
In the October 2001 issue of eSchool News, Leslie Harris, president of Leslie Harris & Associates, said that Hatch and Leahy had vowed 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 witnesseseducators and content owners alikespoke in favor of the bill,” wrote Harris in an eSchool News “Viewpoint” column.
“With no opposition and strong bipartisan support, the TEACH Act could be slated for passage this fall,” she predicted.
But the events of Sept. 11 changed everything, causing the TEACH Act and other legislation to play second fiddle to issues of national security.
“There are so many things that were going to be considered pre-Sept. 11,” said Lee. “Right now, the only domestic issue that has remained in the spotlight is ESEA. Everything else has just slowed down.”
“The whole agenda and priorities after Sept. 11 have changed,” agreed Jeff Lungren, spokesman for the House Judiciary Committee. “We’ve been completely consumed with the anti-terrorism bill and the terrorism investigation.”
After the Sept. 11 tragedies, Lundgren said, the Judiciary Committee had to redirect its resources to more pressing needs. The committee is just now getting back to the issues it had hoped to tackle earlier, he said.
Some critics of the TEACH Act, including the Association of American Publishers (AAP), might welcome the change in legislative priorities.
In a hearing last spring, a lobbyist for the AAP warned members of the Senate Judiciary Committee that changes to the current law could lead to increased piracy of copyrighted materials.
Allen Adler, AAP’s vice president of legal and governmental affairs, said he hoped the committee would reconsider the bill “so that the clever acronym that you’ve come up with for this legislation, TEACH, does not devolve into something that really would stand more for the Technology Education And Copyright Heist Act.”
But educators who testified at the hearing said the bill was sorely needed, as licensing fees for the use of copyrighted materials threaten to undermine the growth of distance-education programs.
Paul LeBlanc, president of Marlboro College in Vermont, told the committee that a student at his college wanted to use 15 seconds from Kenneth Branagh’s Henry V for a multimedia presentation a few years ago.
“It took almost two weeks to track down the right person with whom to speak, and when we finally had that conversation, they reported back to us that it would cost the student $2,000 for a one-time use of that video,” he said.
The delay “is a disappointmentfrom a personal perspective, we’ve been very interested in trying to build our online curriculum in the arts and humanities, and this [legislation] is really critical for that,” said Linda Pittenger, project director for Kentucky Virtual High School. “The longer [legislators] delay, the more students are losing access to resources that could be really important for them.”
While the TEACH Act’s momentum has subsided, legislative analysts say it will remain on the agenda for the 107th Congress in 2002.
“Our gut feeling is that it will be addressed again sometime in the middle of next year,” said Lee. Lungren, the House Judiciary Committee spokesman, would not speculate on when the bill would be addressed once again.
House Judiciary Committee
Leslie Harris & Associates
Association of American Publishers