[Senate Hearing 106-539]
[From the U.S. Government Publishing Office]
S. Hrg. 106-539
THE COPYRIGHT OFFICE REPORT ON COPYRIGHT AND DIGITAL DISTANCE EDUCATION
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
on
THE LIBRARY OF CONGRESS COPYRIGHT OFFICE REPORT ON COPYRIGHT AND
DIGITAL DISTANCE EDUCATION
__________
MAY 25, 1999
__________
Serial No. J-106-29
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
65-338 CC WASHINGTON : 2000
COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
Manus Cooney, Chief Counsel and Staff Director
Bruce A. Cohen, Minority Chief Counsel
(ii)
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Hatch, Hon. Orrin G., U.S. Senator from the State of Utah........ 1
Grassley, Hon. Charles E., U.S. Senator from the State of Iowa... 2
Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont... 3
Ashcroft, Hon. John, U.S. Senator from the State of Missouri..... 11
CHRONOLOGICAL LIST OF WITNESSES
Statement of Hon. Marybeth Peters, Register of Copyrights and
Associate Librarian for Copyright Service, U.S. Copyright
Office, Library of Congress, Washington, DC.................... 5
ALPHABETICAL LIST AND MATERIALS SUBMITTED
Peters, Hon. Marybeth:
Testimony.................................................... 5
Prepared statement........................................... 14
THE COPYRIGHT OFFICE REPORT ON COPYRIGHT AND DIGITAL DISTANCE EDUCATION
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TUESDAY, MAY 25, 1999
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 10:07 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch (chairman of the committee) presiding.
Also present: Senators Grassley, Ashcroft, and Leahy.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
The Chairman. Well, good morning, and welcome to our
hearing on The Copyright Office Report on Copyright and Digital
Distance Education. Appropriately, we are streaming our
proceedings here live on the Internet, so I extend a particular
welcome to those in the virtual hearing room on the Net.
The growth of distance education is very exciting. With the
increasing sophistication of the Internet and other
communication technologies, classrooms are no longer tied to a
specific point in either space or time. Virtual classrooms are
popping up all over the country, and indeed the world, where
all kinds of people are interacting and learning through these
new forms of media.
True to its heritage, Utah is a pioneer among States in
blazing the trail to the next century, making tomorrow's
virtual classrooms a reality today. Fittingly, since it is home
to one of the original six universities that pioneered the
Internet, the State of Utah and the Utah System of Higher
Education were recently ranked number one in their respective
categories in PC Magazine's Fast-Track 100 List of Government
and Educational Innovators.
My own alma mater, Brigham Young University, was also named
one of ``America's 100 Most Wired Colleges'' by Yahoo!, with
Utah State University not far behind. Such national recognition
reflects, in part, Utah's high-tech industrial base and the
fact that Utah is the only State with a centrally coordinated
statewide system for distance learning.
I was pleased to host the Register of Copyrights at a
distance education exposition and copyright roundtable that
took place at the nerve center of that system, the Utah
Education Network, where we saw many of the exciting
technologies being developed and implemented in Utah by Utahns
to make distance education a reality.
Distance education holds great promise for students in
States like Utah. Students in remote areas of my State are now
able to link up to resources previously only available to those
in cities or at prestigious educational institutions. For many
Utahns, this means having access to courses or being able to
see virtual demonstration of principles that, until now, they
have only read about.
At the event in Salt Lake City, Ms. Peters and I dropped in
on a live online art history class hosted in Orem that included
high school and college students scattered from Alpine in the
north to Lake Powell in the south, nearly the full length of
the State. And the promise of distance education extends far
beyond the traditional student, making expanded opportunities
available for working parents, senior citizens, and anyone else
with a desire to learn.
As exciting as distance education is, the copyright issues
it raises are numerous and complex. Distance education will
work only if teachers and students have affordable and
convenient access to the highest quality educational materials.
But without adequate incentives and protections, those who
create these materials will be disinclined to make their works
available for use in online distance education.
The interests of educators, students and copyright owners
need not be divergent. Indeed, I believe they coincide in
making the most of this medium. That is why the Commerce
Department's direction to the Copyright Office was that it
conduct an in-depth study of how to promote distance education
through digital technologies, while maintaining the appropriate
incentives for authors and accommodating the needs of students,
teachers and other academic users of copyrighted works.
Today, the Copyright Office formally presents the results
of its 6-month study of distance learning and the copyright
law, as required by the landmark Digital Millennium Copyright
Act, the DMCA. That Act implemented the WIPO treaties regarding
copyright rules in the online environment and laid the basic
copyright structure to foster the growth of electronic
commerce. The report presented today reflects this committee's
desire to understand more thoroughly the promise of distance
education and technologies involved, the breadth and complexity
of the issues, and how legislation may foster or impede the
progress of technology in education. At this time I would like
to submit the prepared statement of Senator Grassley.
[The prepared statement of Senator Grassley follows:]
Prepared Statement of Senator Charles E. Grassley
Mr. Chairman, thank you for holding this hearing on the Copyright
Office's Report on digital distance education. It's important that
universities and other educational institutions can provide their
students with distance learning options. Educational institutions in
rural areas, like in my state of Iowa, should have increased
opportunities to reach out to students that can't get to the classroom.
Iowa, through the state-wide Iowa Communications Network, (``ICN''),
has been a leader in using advances in technology to facilitate the
sharing of educational resources among Iowa's communities and school
districts. This network connects virtually every school district and
higher education institution in Iowa, as well as Iowa Public
Television, state agencies, federal agencies, Iowa National Guard
sites, and our public libraries and hospitals. The ICN truly provides
all Iowans, even those living in the most remote or rural areas, access
to Iowa's outstanding educational opportunities and resources.
With technological developments advancing at such a rapid rate, we
need to take a close look at the copyright laws and make sure that they
do not hamper online delivery of instruction. While it's important that
we balance the interests of copyright owners and the users of their
works, it's also important that distance learning continue to play a
critical role in expanding educational opportunities for all
individuals. So, I look forward to hearing about the Copyright Office's
findings and recommendations, and I will be sure to review the Report
carefully.
The Chairman.I look forward to the testimony of the
Register today and to hearing her findings and recommendations.
We want to do the right thing with respect to the promotion of
distance education. What we don't want to do is stand in the
way of the development of new and exciting technologies or
burgeoning markets by acting prematurely or without adequate
information. I have great respect for the Register and
tremendous confidence in her ability to advise this committee
in this regard, and I look forward to learning more from her
today and working with her in the future to see that we resolve
these problems.
We have placed a lot of burdens on you, Marybeth, but I
think you are capable of taking care of it.
So we will turn to the ranking member.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Mr. Chairman, I might say I don't think
there is anything Ms. Peters couldn't handle, so I am delighted
to have her here.
I think the enactment of the Digital Millennium Copyright
Act, the DMCA, was actually one of the outstanding
accomplishments of the last Congress. I was pleased, Mr.
Chairman, to work with you and others on the committee on that
new law that updated and made necessary adjustments to our
copyright law to comply with two new copyright treaties which
had been consented to by the Senate and ratified by the
President.
As part of that new law, we asked the Copyright Office to
conduct a study of the complex copyright issues involved in
distance education and to make recommendations to us for new
legislative matters. The DMCA last year started the process of
updating the Copyright Act. The Copyright Office report
released today on distance learning will help us complete that
process.
I noted in the May 1998 committee report for the DMCA that
on receiving the Copyright Office's recommendations on digital
distance education, it was my hope for this committee to hold
hearings on the issue and move expeditiously to enact further
legislation on the matter. I think Chairman Hatch deserves
credit and praise for holding this hearing promptly on such an
important issue.
The Copyright Office, as is its custom, did a tremendous
job. It conducted detailed public hearings and solicited public
input. It worked closely with all of the stakeholders. I
commend you, Ms. Peters, and I commend your terrific staff,
particularly Shira Perlmutter, for their extraordinary work on
this report.
I had mentioned to you earlier before the hearing started,
I wanted to thank you for meeting informally with a number of
interested Vermonters at Champlain College, in Burlington, VT,
in March. This is not always our best season, but you listened
to their concerns on the issue.
Champlain College is kind of a unique place, in that it has
succeeded greatly in a number of areas. It has been offering
online distance learning programs since 1993, with a number of
online programs, including offering degrees in accounting,
business, and hotel and restaurant management. This is
something you and I discussed earlier this morning.
The growth of distance learning is exploding. The report
notes that, `` * * * by 2002, the number of students taking
distance courses will represent 15 percent of all higher
education students * * *'' That is an extraordinary number. The
typical average distance learning student is 34 years old,
employed full-time, has previous college, and more than half
are women. This is something that is changing the whole face of
education.
These are people with busy schedules who need the
flexibility that online programs offer--virtual classrooms
accessible when the student is ready and free to log on. And
then we have interactive distance learning, not the traditional
passive approach of watching a lecture over the air.
Vermont, you know, is just like Utah where you have many
small towns and rural areas. The Vermont Telecommunications
Plan which was just published identifies distance learning as
critical to Vermont's development. That is why I worked to have
included in the 1990 farm bill a significant amendment that
authorized funding to provide distance education for rural
Americans. It has helped schools throughout the Nation. For
example, under the Leahy law, $300,000 went to the Grand Isle
school system of Vermont for its distance learning program.
You have pointed out that the computer is the most
versatile of distance education instruments, both in the
material that can be offered and the flexibility in access.
When we enacted the present copyright law, we recognized the
potential of broadcast and cable technology to supplement
classroom teaching, and to bring the classroom to those who,
because of their disabilities or other special circumstances,
are unable to attend classes.
We recognized the potential for unauthorized transmission
of works harm the markets for educational uses of copyrighted
materials. I think the present Copyright Act strikes a careful
balance and has a very narrowly crafted exemption for distance
learning. You have made recommendations that deserve our close
attention for updating those provisions.
So, Mr. Chairman, again I applaud you for doing this. I
applaud you for making sure that the hearing is on the Net. I
hope we can continue this practice on a more regular basis.
Anybody who just goes to judiciary.senate.gov--you click on
this week and, assuming it works, there you are.
The Chairman. Well, we assume it works.
Senator Leahy. The good-looking guy, for those who are
watching, is Senator Hatch, and the bald guy is Pat Leahy.
The Chairman. Well, that is the first time anybody has
called me good-looking.
Let's turn now to our distinguished witness, who really
needs no introduction. Ms. Marybeth Peters is the Register of
Copyrights and Associate Librarian for Copyright Services at
the U.S. Copyright Office in the Library of Congress. This
committee has long relied on Ms. Peters and her office for
copyright expertise. Her knowledge, experience and insight have
proven invaluable as we have sought to address the complexities
of copyright legislation, and particularly the challenges of
new technologies and the challenges of the digital revolution.
Not surprisingly, the mandate she has been given by
Congress with respect to the issue of copyright and digital
distance education is not an easy one. I appreciate her efforts
and those of her staff in conducting this study in the
relatively short time frame provided under the statute, and I
really look forward to hearing from you today.
So let's turn to you, Ms. Peters, for your presentation,
and we will then have some questions for you.
STATEMENT OF HON. MARYBETH PETERS, REGISTER OF COPYRIGHTS AND
ASSOCIATE LIBRARIAN FOR COPYRIGHT SERVICES, U.S. COPYRIGHT
OFFICE, LIBRARY OF CONGRESS, WASHINGTON, DC
Ms. Peters. Thank you. Before I begin, I would like to
introduce my colleagues. Senator Leahy acknowledged Shira
Perlmutter, our Associate Register for Policy and International
Affairs, who, at the end of the week, will go to Geneva to work
for the World Intellectual Property Organization for a year;
and two members of her staff, Sayuri Rajapakse and Rachel
Goslins, who, without their efforts, we would not have a
report.
The Chairman. Are you all going to Geneva?
Ms. Peters. No, just Shira. And we also have David Carson,
our general counsel, who provided wise advise to this report.
Mr. Chairman, members of the committee, I am pleased to
present the recommendations of the Copyright Office with
respect to digital distance education. As you mentioned, in the
Digital Millennium Copyright Act Congress charged us with the
responsibility to study how to promote distance education
through digital technologies, while maintaining an appropriate
balance between the rights of copyright owners and the needs of
users.
The Office's report which we formally submit to the
Congress today is the outcome of 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. This morning, I
will give a brief overview of our conclusions and
recommendations.
As you know from the meetings in Utah, distance education
in the United States is a vibrant and burgeoning field. While
the concept dates back to the correspondence courses of the
19th century, the capabilities of digital technologies to
deliver instruction to students, removed from the instructor in
time and space, has vastly increased its appeal and potential.
Today's digital distance education involves copyrighted
works being used in new ways, providing new benefits to
students and teachers, but also posing new risks for copyright
owners. Educational institutions and copyright owners see
digital distance education as a potentially lucrative market.
Licensing of copyrighted works in this market will be
important. However, exceptions and fair use play a role.
Our focus was on two specific exemptions in section 110 of
the copyright law. These provisions were written more than 20
years ago, before the advent of computer networks and personal
computers. The question is whether they still strike the
appropriate balance of interest.
The analysis is complicated by the context, a time of rapid
development in both technologies and markets. Many of the
concerns on all sides stem from the inability to depend on
effective functioning of technological protection and licensing
mechanisms. The tools for both exist today. It will be clearer
within the next few years how successfully they can be
integrated into the real world of distance education.
As a fundamental premise, the Copyright Office believes
that emerging markets should be permitted to develop with
minimal Government regulation. However, that does not mean that
the law must remain fixed. When a statutory provision that is
intended to balance the interests becomes obsolete due to
changes in technology, it may require updating if the policy
behind it is to continue. In our view, if that basic policy
balance struck in 1976 is to continue, section 110(2) must be
updated.
We recommend several changes and additions to the law and
legislative history. First, update the exemption to accommodate
the technical requirements of digital transmissions over
computer networks by making it clear that the term
``transmission'' in section 110(2) covers such transmissions,
and by expanding the rights covered by the exemption to include
those needed to accomplish computer network transmissions to
the extent technologically required.
Second, eliminate the physical classroom requirement in
section 110(2). Because digital distance education allows
instruction to take place anywhere, this limitation has become
obsolete. We recommend permitting transmissions to students
officially enrolled in the course, regardless of their physical
location.
Third, add language that focuses more clearly on the
concept of mediated instruction. This would ensure that the
performance or display is analogous to the type of performance
or display that would have taken place in a live classroom.
Fourth, because digital transmissions pose greater risks to
uncontrolled copying and dissemination, add a number of
safeguards as conditions on the applicability of an expanded
exemption. These include permitting the retention of transient
copies only to the extent that they are necessary to accomplish
the transmission, requiring the adoption of copyright policies
and the provision of information materials that accurately
describe and promote compliance with copyright law, and
requiring the use of technological measures to reasonably
protect against both unauthorized access and unauthorized
dissemination of copyrighted works.
Fifth, retain the current non-profit requirement for
eligibility. Many called into question the advisability of
keeping this requirement and suggested the need to require
accreditation. However, we are not yet convinced that a change
is desirable. Nevertheless, this is an important issue that
deserves further consideration.
Sixth, add a new provision to section 112, the ephemeral
recordings exemption, in order to allow digital distance
education to take place asynchronously. This would permit an
educator to upload a copyrighted work onto a server, to be
subsequently transmitted to a student under the conditions set
out in section 110(2).
Seventh, consider expanding the categories of works
exempted from the performance rights beyond the current
coverage of non-dramatic literary and musical works. This is
one of the most difficult issues to resolve. On the one hand,
pedagogical considerations militate against continuing to limit
the types of works covered. On the other hand, the existing
distinctions have been embodied in our law for more than 20
years and they are based on the potentially greater market harm
to dramatic works and audio-visual works. On balance, we
suggest a compromise. Add audio-visual works, dramatic works,
and sound recordings. However, allow performances of only
reasonable and limited portions, not the entire work.
In addition to these statutory recommendations, we
recommend clarification of the fair use doctrine in legislative
history. Because there is considerable confusion and
misunderstanding about the doctrine, we believe it is important
for Congress to confirm that fair use is technology-neutral and
applies to activities in the digital environment, and to
explain the function of fair use guidelines.
Finally, concerns were raised about the problems in the
functioning of licensing for digital distance education. We
have not seen any evidence of a need to abandon or need to
regulate licensing systems. Given the state of flux of online
licensing and technology, and the decreasing influence of
elements of fear and unfamiliarity, problems of delay and cost
may subside to an acceptable level. We therefore recommend
giving the market leeway to evolve and mature, and revisiting
the issue in a relatively short period of time.
Thank you. We really have enjoyed our experience, and we
would be delighted to answer your questions and we look forward
to working with you and members of the committee and the staff
in any way that would be useful to you as this process moves
forward.
The Chairman. Well, thank you for your excellent comments.
I was pleased to have you and the Associate Register join me in
Utah last month for a day of technology demonstrations and a
copyright roundtable discussion on the issue with Utah's
education, library, copyright and high-tech communities.
Can you tell us what impact your visit to Utah had in
informing the Copyright Office's process and how the
discussions generated by Utahns may have been helpful in coming
to the conclusions that you outlined in your report here today?
Ms. Peters. First, I would like to commend you for your
staff in the excellent work that they did in putting together
an extremely useful day. The demonstrations that were set up
were extremely helpful to us. They showed where the technology
was going, the various aspects that people were going into, and
the evolution of partnerships among companies and educators.
The programs that we saw were highly sophisticated and
extremely innovative, so they gave us a better handle on where
technology was going and where education was going.
The roundtable discussion that you led off was, in
particular, extremely constructive. We heard from a very wide
range of perspectives, and the participants really interacted
and generated new insights into the process by listening to
each other. I think having an author, having a photographer,
having a composer, having a publisher there made a huge
difference. And it made a difference not only to us, but to the
educators and librarians who were part of the process. We came
back so high on the experience that Sayuri and Rachel, who were
not able to join us, felt that they really had missed out on
something extremely worthwhile.
The Chairman. Well, thank you. At the roundtable discussion
in Utah, we heard, as I viewed it, two disparate themes even
from within the educational community. On the one hand were
those who reported widespread problems in securing licenses for
digital distance education and who urged a prompt congressional
response to minimize those transaction costs. On the other
hand, there were those who were encouraged by the progress of
technology and emerging licensing mechanisms to facilitate
education in the online environment, and urged Congress not to
interfere with the progress.
Now, can you tell us what you found regarding the
marketplace evolution of new and emerging licensing mechanisms
in this area, and the development of technological measures to
protect copyright works?
Ms. Peters. We think that our recommendations address both
communities. Certainly, with regard to new licensing
mechanisms, that are emerging. The collective societies do have
new online systems that are in place. Publishers who do
business in the educational markets are putting in place some
very, very sophisticated licensing mechanisms. Many people are
looking at attaching rights and licensing terms and conditions
to the work itself. So there really are exciting things taking
place with regard to licensing activities.
With regard to technology, we learned from demonstrations
and people who participated in our hearings that there is
considerable growth, and, in fact, on the market today
technologies that certainly control access and that control
downstream copying. They are not in widespread use, but we are
very optimistic that within the next few years that they will
be widely deployed.
I think a question remains on whether or not certain
encryption technologies or controls are accepted from the
American public. Since you come from a computer State, when
encryption was introduced with regard to computer programs, the
marketplace rejected that attempt. So we will have to see how
that plays itself out. We think that with our recommendations,
there would be an expanded exemption and that many of the
concerns with regard to licensing would be addressed; that
licensing is improving and technological protections are
improving.
The Chairman. Your recommendations are based on applying
policies adopted in the 1976 Copyright Act----
Ms. Peters. That is right.
The Chairman [continuing]. Which presumed traditional
classroom instruction mediated by a teacher to the new medium
of the wired environment. To some, however, one of the reasons
that distance education is so exciting is that it opens up
methods for learning unlike anything available heretofore.
Now, the technology is certainly revolutionary. We saw a
lot of that that day. Classes do not necessarily exist in the
same point of space or in time, and traditional notions of
classrooms and textbooks, and even of teachers and libraries,
are certainly stretched and possibly obliterated. Given that,
could you explain why the assumptions and tradeoffs of 1976
should apply with the same force in the new digital interactive
environment?
Ms. Peters. Actually, our recommendations don't totally
preserve that. If you look at the legislative history in 1976,
what the Congress was saying is that the methods of delivery to
classrooms should cover the types of performances that were
specified as being exempted. We looked at what is going on
today and recognized that you had to expand that, and therefore
we do include with regard to rights additional rights of
reproduction and distribution to the extent that they are
necessary to have the transmissions brought to the place where
the student is.
We do think that there is a place for exemption and a place
for licenses. Many of the materials that are being used today
are licensed and we believe should continue to be licensed. So
we do think that the balance that the Congress achieved in
1976, which is for instruction in a classroom, was a valid type
of exemption, and we are trying to roll that forward to what is
as close as possible to what took place in a classroom.
So I would be on my computer at home and getting the
lesson. It may not be a lecture. It may be an exercise with a
poem, because I am studying literature and they may want to
have me examine what that poem is. So we have, in fact, moved
it forward, but we do want to place appropriate limits, those
closer to the type of activity that you would have in the
equivalent of a classroom.
The Chairman. Thank you.
Senator Leahy, we will turn to you.
Senator Leahy. Thank you. Ms. Peters, you said in the
report that the Copyright Office has a fundamental belief in
the premise that emerging markets should be permitted to
develop with minimal Government regulation.
When we are dealing with the Internet, I agree with that
because even when I sit down with some of the leaders in that
industry, the people who have been the most innovative--Steve
Case, Jerry Yang from Yahoo, Jim Barksdale, and others--and you
say, well, what would you predict 5 years from now, you get a
chuckle; we are trying to predict 5 months from now. We don't
want Government to stifle this.
With new broadband technologies, it will be fairly soon
when on a rainy evening you decide you would like to watch a
movie, you don't go to the video rental store. In 5 minutes,
you can download a movie that you can order. All these things
are so amazing and might be here shortly.
The marketplace in many ways will set the right price for
copyrighted works. I know that some educators noted problems
with using copyright works in distance education programs, but
I am wondering if we clarified when and how educators may use
copyrighted works online in virtual classrooms or to supplement
work in regular classrooms--if we clarified when and how they
can do it, would that be helpful? Can we do that?
Ms. Peters. Hopefully, you can draw the appropriate
balance, and I think it would be extremely helpful. I think in
our report, you find that many people complained about the
inability to license. I have to say one of the interesting
things that we learned in our hearings--we asked educators what
they were having the most trouble in licensing and they said
electronic rights. When we asked publishers what was the
problem that they were having in putting together digital
distance education packages, they said acquiring electronic
rights.
So authors are being very careful with regard to electronic
rights, and I think that makes it difficult for both publishers
and for educators. But I do think that if you make it clear
that the computer and Internet networks can, in fact, deliver
under appropriate safeguards material to students who are
enrolled, wherever they may be, and if you add the additional
categories but limit them, I think you will be doing a great
service to community colleges and to many institutions,
colleges, high schools, throughout the world.
Senator Leahy. Haven't others tried to figure these things
out, such as the Consortium of College and University Media
Centers and CONFU, Conference on Fair Use? They have gotten
together on some of these issues.
Ms. Peters. That is right.
Senator Leahy. Is it just wishful thinking that the
educators, the publishers, the copyright users and others could
get together on their own and agree on fair use guidelines
rather than having legislation? And the reason I ask that
question, just so you understand, I am perfectly willing to
work for legislation, but I get very worried about legislating
for a year or two something that is going to change
substantially during the year or two that we are legislating.
Ms. Peters. I actually am a firm believer of guidelines.
What I do believe, though, is for guidelines to succeed, there
has to be a congressional mandate. There has to be the Congress
behind it saying, work on this, this is a good thing, you
should be achieving this. As I said, it would help if the
Congress could clarify the role of guidelines.
I also think that a particular agency has to be charged
with that, and the mandate has to be narrow, not everything in
the world, and that the people who participate should be
through the process throughout. It can't be a process where
people keep coming and going. There has to be continuity and
you have to work toward the end result that the Congress can
then publish in a legislative report, but I happen to think
that it is a good process.
Senator Leahy. Well, the chairman and I are very interested
in this whole area and we want to make it work. Again, I just
say we have been very happy with the response from your office
on this and the guidance from your office. It has been helpful.
We are going into the century plotting new ground, but using
200-year-old principles, many of which are very tried and true.
So it is going to be fascinating.
The Chairman. Thank you.
Senator Ashcroft.
Senator Ashcroft. Mr. Chairman, first of all, let me thank
you for holding this hearing and for allowing me to participate
in the request for this study which I think is valuable and
productive.
I would ask that I be able to submit for the record remarks
which I had prepared, and I would like to use the balance of my
time in questioning, if it is all right.
The Chairman. Fine.
[The prepared statement of Senator Ashcroft follows:]
Prepared Statement of Senator John Ashcroft
Mr. Chairman, I want to thank you for holding this hearing, and I
want to thank Ms. Peters for her report and for her testimony here this
morning. Distance learning holds tremendous potential for making
quality education available to all students, especially students in
rural areas in States like Missouri, Vermont and Utah. Just as the
Internet has made it possible for businesses like Amazon.com to become
tremendous successes without extensive brick and mortar facilities, the
Internet has also removed the size of brick and mortar schoolhouses
(and the distance between students and those schoolhouses) as
constraints on providing quality education. Technology has unlocked the
full potential of distance learning. Unfortunately, however, federal
copyright law has limited distance learning from reaching its full
potential.
The copyright law's provisions on distance learning demonstrate the
dangers of legislating in technology-specific terms. These provisions
were included in the copyright law in 1976. Unfortunately, they reflect
the state of distance learning in 1976. As a result, the provisions
allow for display and performance of a copyrighted work but do not
permit copying. By their very nature, digital technologies involve the
creation of temporary copies. Accordingly, the law does not protect
digital distance learning. The law also limits the exemption for
distance learning in ways that may have made sense in 1976, but make
absolutely no sense today. In 1976, most distance learning took place
in classrooms, and the law limited the exemption to classroom settings.
Today, the whole promise of digital distance learning is that it offers
education opportunities outside the four walls of a classroom. In
short, because the distance learning provisions were written in
technology-specific terms, provisions designed to facilitate distance
learning, now stand as an obstacle to effective digital distance
learning.
In an effort to unlock the full potential of distance learning, I
introduced the Digital Copyright and Technology Education Act, S. 1146,
in the last Congress. The provisions on distance learning in that bill
would have vastly expanded the ability of educators to use the Internet
for distance learning. Unfortunately, however, efforts to work out a
compromise between the interested parties based on this language were
not successful. With the help of Senators Hatch and Leahy, I was able
to include an amendment in the Digital Millennium Copyright Act calling
on the Copyright Office to conduct a study of distance learning and
issue a report. Today's report is the product of that amendment.
Based on my preliminary review, the report correctly recognizes
that changes in the law are necessary for distance learning to reach
its full potential. Specifically, the report recognizes that we must
update the law to reflect the nature of digital technology. I am
confident that this can be done without adopting technology-specific
language that may not account for future technological advances. The
report also recognizes that the limitation to classroom settings
prevents distance learning from providing educational opportunities
where they are most needed. In sum, I believe that the report provides
the basis for legislation that will update the copyright law so it once
again facilitates distance learning, rather than standing in the way.
My one concern with commissioning a report, rather than resolving the
distance learning issue in the last Congress, was that some parties
would be tempted to obstruct stand-alone legislation. I look forward to
working with my colleagues to ensure passage of common sense
legislation to facilitate digital distance learning.
Senator Ashcroft. Let me express to you my appreciation,
Ms. Peters, for your work. I think there are major challenges
which need to be confronted to try and make it possible for us
to take advantage of technology, which now provides a broader
range of opportunities for learning than we have had before.
Some interested parties apparently have suggested that,
``fair use'' is sufficient to take care of the problem of
digital distance learning. However, this strikes me as
inconsistent with the existing copyright law. If fair use were
sufficient to take care of the problem of distance learning,
why would we even have the existing provisions, for example, in
section 110 recognizing an exemption for distance learning?
Would you care to comment on that?
Ms. Peters. Fair use is a wonderful doctrine. The problem
is it doesn't always create predictability, and what we heard
in our various meetings and hearings was tremendous confusion.
And perhaps some people used works and went beyond fair use,
but just as often people didn't use works because they felt it
didn't meet the criteria of fair use.
So I think what the goal is is to try to come up with what
we believe are permitted uses that are acceptable and have an
understanding of what that is. Normally, when you agree that
certain things should be permitted, an exemption can be the way
to go because you don't have to worry about predictability. And
fair use has always been a backdrop where you weigh all of the
evidence.
So I think it is up to the committee to decide where it
wants to go. Does it want to update an exemption or does it
want to work in the area of fair use and maybe go in the area
of guidelines or legislative history that clarifies better for
the educational community what is and what is not fair use?
Senator Ashcroft. I was pleased to see that you recommended
eliminating the requirement that distance learning take place
only in a classroom setting. This only makes sense because of
the real promise that digital distance learning is providing
education beyond the classroom. I understand that eliminating
this limitation on the exemption would create potential for
abuse.
What other limitations on the exemption can help prevent
such abuse?
Ms. Peters. There are a number of things that are in our
report; certainly, the use of technological protection
measures, both with respect to gaining access to a work, which
we did find that almost all educational institutions have in
place, whether it is the use of passwords or PIN's or whatever.
The more troubling piece is that you need to control the
downstream copying, especially when entire works have been
used, for example, an entire musical composition. There, again,
there are technological protection measures that could prohibit
additional copying, but they are not in widespread use. Our
report recommends including both, to the extent that it is
reasonable to do so.
Senator Ashcroft. I understand that the current exemption
exists and inures to the benefit of non-profit educational
institutions. But as I look at the educational community, I see
it in very serious transition, and some of the best schools
delivering the best education at the lowest cost can be profit-
oriented institutions.
Would you recommend that the committee visit that with a
sort of critical eye? What if it is cheaper for the students?
What if it generates greater student performance? What if
profit institutions actually consume fewer of the cultural
resources in providing good education to students? Should we be
discriminating against the school because it does a better job
merely because it is for-profit?
Ms. Peters. This was one of the issues that created the
greatest debate. We found that there were non-profit
educational institutions that had for-profit online courses. We
found that there were for-profit institutions that had not-for-
profit courses. We found that many institutions were forming
partnerships with corporations and forming partnerships with
each other.
And there was tremendous testimony to the effect that a
more appropriate criteria might be accreditation, whether it is
an accredited institution or an accredited course. There was
concern that I could call myself the Peters University and put
my material up on the Net and sign up some people and make it
available. And, you know, I have no accreditation and I might
not be limited by good pedagogical techniques and I might be
putting up a lot of entire musical compositions. So there was a
lot of concern about even abuse in the non-profit.
For us, first of all, in our mandate we were asked to
consult with non-profit educational institutions.
Senator Ashcroft. So that is our fault.
Ms. Peters. Well, that is one piece, but we didn't limit
ourselves to that, I will tell you.
Senator Ashcroft. So in your good judgment, you----
Ms. Peters. We decided we should hear from everybody. The
second one is that the part of the law that we focused on,
which is sections 110(1), face-to-face teaching activities, and
110(2), which is like instructional broadcasting, both are
limited to non-profit educational institutions. And so it
wasn't that easy to update 110(2) and change the criteria for
eligibility. But what we do say is that that is something you
may want to look at it.
Senator Ashcroft. If I might, Mr. Chairman, I just think
that the line between profit and non-profit continues to be
blurred more and more in our culture.
Ms. Peters. We saw that, and what we found that was
interesting is, on licensing, the copyright owners who
license--if the request is for educational use, they do not
make a distinction between whether the institution is for-
profit or non-profit.
Senator Ashcroft. Of all the books that I have had the
privilege of selling, my wife and I charge them the same. That
is free, no extra charge for that evidence.
Thank you, Mr. Chairman.
The Chairman. Well, just one or two other questions, Ms.
Peters. Educators have raised concerns that they may not be
able to provide distance education students the same quality of
instruction that they provide for face-to-face students. How do
your recommendations address these concerns?
Ms. Peters. Our intent with the recommendation was to
certainly allow them to use materials on the Internet, and our
recommendation with regard to portions of works with regard to
audio-visual works and sound recordings and dramatic works, we
think, could address some of that. Now, obviously, there is
some need for licensing.
The Chairman. Sure. Now, copyright owners have raised the
concern that expanding section 110(2) would harm their markets
both by interfering with licensing opportunities and by
increasing the risks of unauthorized dissemination over the
Internet. How do your recommendations address those concerns?
Ms. Peters. Number one, with regard to the marketplace,
they may have some legitimate concerns, and specifically the
concern should be with those who are in the educational market.
If you are an educational or an instructional publisher, then,
in fact, that is your market and I would think that there are
some additional concerns.
With respect to concerns about leakage and downstream
copying, I think it is the technology; it is the technology
that would prevent downstream copying and the technology that
would prevent unauthorized access that must be the answer.
The Chairman. What are the international implications of
your recommendations? Would they be consistent with the treaty
obligations of the United States?
Ms. Peters. We believe that our recommendations, if
enacted, would meet the treaty obligations. There are two
things that you look to. One is the Berne Convention, which has
an article 10(2) that permits the utilization, to the extent
justified by the purpose, of literary or artistic works by way
of illustration in broadcast for teaching in a manner
compatible with fair practice.
The TRIP's text has an article that basically says that you
can have restrictions and conditions as long as they don't
interfere with the legitimate exploitation of the work or
unreasonably prejudice the interests of the author. We think
that recommendations would be permitted under both the Berne
Convention and the TRIP's text.
The Chairman. Well, thank you. What we are going to do is
we will keep the record open for written statements that
anybody wants to submit for the hearing record, and we will
also keep the record open for questions from members of the
committee. We will keep it open until the end of the week.
Ms. Peters. Can I just mention to you that for people who
are looking for the report, we will be distributing it today
and we will have it on our Web site later today.
The Chairman. That will be great. Well, this has been
helpful and I think it moves us along the way toward some
resolution here. We appreciate all the efforts you have made,
and your staff and others who have worked so closely with you.
Well, thanks so much.
Ms. Peters. We appreciate it.
[The prepared statement of Ms. Peters follows:]
Prepared Statement of Marybeth Peters
Over the past five years, the application of copyright law to
distance education using digital technologies has become the subject of
public debate and attention in the United States. In the Digital
Millennium Copyright Act of 1998 (DMCA), Congress charged the Copyright
Office with responsibility to study the issue and report back with
recommendations within six months. After an intensive process of
identifying stakeholders, holding public hearings, soliciting comments,
conducting research, and consulting with experts in various fields, the
Office has issued this Report.
Part I of the Report gives an overview of the nature of distance
education today. Part II describes current licensing practices in
digital distance education, including problems and future trends. Part
III describes the status of technologies relating to the delivery and
protection of distance education materials. Part IV analyzes the
application of current copyright law to digital distance education
activities. Part V discusses prior initiatives addressing copyright and
digital distance education. Part VI examines the question of whether
the law should be changed, first summarizing the views of interested
parties and then providing the Copyright Office's analysis and
recommendations.
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-ROM's
and DVD-ROM's. 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. The goal
is to provide a high enough level of protection that the cost of
circumvention outweighs the value of access to the material protected.
Educational organizations can, and commonly do, limit access to
students enrolled in a particular class or institution through several
different methods used separately or in combination: password
protection, firewalls, screening for IP addresses or domain names,
hardware connections, encryption, or using CD-ROM's as a delivery
mechanism.
After access has been gained, however, material is available to
students for further use, including downloading, or electronic
distribution. Technologies that address such downstream uses do exist
today, with several on the market, others expected to be released very
soon, and others projected for release in the next year. Most, but not
all, are designed to handle a single type of content. The most
effective are secure container/proprietary viewer technologies, which
allow copyright owners to set rules for the use of their works, which
are then attached to all digital copies, and prevent anyone from making
a use that is not in accordance with the rules. For example, students
could be allowed to view the work or print a single copy, but not to
save it to disk or distribute it to others electronically. Streaming
formats, which do not facilitate the making of copies, and the use of
low resolution digital copies, also offer some degree of protection
against redistribution.
Technologies for embedding information in digital works to identify
and track usage are also in development and use, with the practice of
digital watermarking the most effective. Using commercially available
software or services, these identifiers can be used as a search object
to find unauthorized copies of some types of works on the World Wide
Web.
Significant developments are occurring in all of these areas, and a
few generalizations can be made. More efficient licensing mechanisms
will become more widespread, and delivery systems will become more
efficient, sophisticated and interoperable. Developments in protecting
content are harder to predict. In the near future it will be
technically possible to protect works against both unauthorized access
and dissemination with a high degree of effectiveness. Because it
remains to be seen whether technologies to prevent downstream uses will
gain widespread market acceptance, the extent to which they will be
available in practical form for use in digital distance education at
any given point in time is unclear.
IV. Application of Copyright Law To Distance Education
Different copyright rights are implicated by different educational
activities, depending in part on the technologies used. When a
performance or display of a work is accomplished by means of a digital
network transmission, temporary RAM copies are made in the computers
through which the material passes, by virtue of the technological
process. As a result, not only the rights of public performance or
display are implicated, but also the rights of reproduction and/or
distribution. This does not mean that the use is necessarily an
infringement. Permission to use the work could be granted by the
copyright owner, either through an express license or implied from the
circumstances. If not, the use may fall within one of the various
exemptions in the Copyright Act.
Three exemptions together largely define the scope of permitted
uses for digital distance education: two specific instructional
exemptions in section 110, and the fair use doctrine of section 107.
Sections 110(1) and (2) together were intended to cover all of the
methods by which performances or displays in the course of systematic
instruction take place. Section 110(1) exempts the performance or
display of any work in the course of face-to-face teaching activities.
Section 110(2) covers the forms of distance education existing when the
statute was enacted in 1976, exempting certain performances or displays
in the course of instructional broadcasting. Both subsections contain a
number of limitations and restrictions. In particular, the section
110(2) exemption from the performance right applies only to nondramatic
literary and musical works (although the display right exemption
applies to all categories of works). Section 110(2) also contains
limitations on the nature and content of the transmission, and the
identity and location of the recipients. The performance or display
must be made as a regular part of systematic instructional activity by
a nonprofit educational institution or governmental body; it must be
directly related and of material assistance to the teaching content;
and it must be made primarily for reception in classrooms or places of
instruction, or to persons whose disabilities or other special
circumstances prevent their attendance in classrooms, or to government
employees.
As written, section 110(2) has only limited application to courses
offered over a digital network. Because it exempts only acts of
performance or display, it would not authorize the acts of reproduction
or distribution involved in this type of digital transmission. In
addition, students who choose to take a distance course without special
circumstances that prevent their attendance in classrooms may not
qualify as eligible recipients.
Fair use is the broadest and most general limitation on the
exclusive rights of copyright owners, and can exempt distance education
uses not covered by the specific instructional exemptions. It is
flexible and technology-neutral, and continues to be a critical
exemption for educational users in the digital world. It requires
courts to examine all the facts and circumstances, weighing four
nonexclusive statutory factors. While there are not yet any cases
addressing the application of fair use to digital distance education, a
court's analysis will depend on elements such as the subject matter of
the course, the nature of the educational institution, the ways in
which the instructor uses the material, and the kinds and amounts of
materials used. Guidelines have in the past been negotiated among
interested parties to provide greater certainty as to how fair use
applies to education; such guidelines for certain analog uses were
included in legislative history around the time of enactment of the
Copyright Act.
Other exemptions in the Copyright Act may exempt some distance
education uses in limited circumstances, but do not significantly
expand the scope of permitted instructional uses in a digital
environment. These include the ephemeral recordings exemption in
section 112, the limitations on exclusive rights in sound recordings in
section 114, and the exemption for certain secondary transmissions in
section 111. Compulsory licenses could permit distance educators to use
some works in limited ways, but are not likely to be much used.
Two titles of the DMCA are also relevant, one providing limitations
on the liability of online service providers and the other establishing
new technological adjuncts to copyright protection. While these
provisions do not affect the scope of permitted digital distance
education uses, they add a degree of security for both educational
institutions and copyright owners disseminating and licensing material
in the digital environment, and may relate to exemptions in various
respects. New section 512 of the Copyright Act provides greater
certainty that educational institutions providing network access for
faculty, staff, and students will not, merely by doing so, become
liable for infringing material transmitted over the network. New
Chapter 12 contains a prohibition against various forms of
circumvention of technological measures used by copyright owners to
protect their works, and a provision protecting the integrity of
copyright management information.
The international context raises two separate issues: treaty
obligations and the impact of any amendments abroad. The major treaties
that impose obligations on the United States with respect to copyright
are the Berne Convention and the TRIP's Agreement. Both contain rules
governing the permissibility of exceptions to copyright owners' rights.
Any new or amended exemption for distance education should be drafted
to be compatible with these standards. In addition, the enactment of
any new exemption will have an impact abroad, primarily due to
doctrines of choice of law. When an educational institution in the
United States transmits courses to students in other countries, it is
unclear whether U.S. law will apply to such transmissions, or the law
of the country where the transmission is received, making it difficult
for educators to determine what uses of works are permissible. Other
countries are also making or considering amendments to their copyright
laws to address digital distance education.
V. Prior Initiatives Addressing Copyright and Digital Distance
Education
Two different initiatives begun in 1994 sought to develop
guidelines interpreting the application of fair use to educational uses
through digital technology. One group, initiated by the Consortium of
College and University Media Centers (CCUMC) and the Agency for
Instructional Technology, issued a set of guidelines in 1996 addressing
the use of portions of copyrighted works in educational multimedia
projects created by educators or students as part of systematic
learning activity at nonprofit educational institutions. The other
group, established by the Conference on Fair Use (CONFU) convened by
the Administration's Information Infrastructure Task Force, prepared
draft guidelines relating to the performance and display of copyrighted
works in distance learning classes of nonprofit educational
institutions, not including asynchronous delivery over computer
networks. CONFU considered both sets of guidelines as proposals, but
did not formally adopt them. A number of organizations and companies,
however, have endorsed one or both sets of guidelines, or use them as a
reference.
In 1997, the issue of copyright and digital distance education was
raised in Congress by the introduction of bills in the House and Senate
proposing an amendment to section 110(2). The amendment would have
clarified that the exemption covered digital transmissions, and would
have broadened its scope, removing the limitation on categories of
works covered, adding the right of distribution, and removing the
requirement that the transmission be made primarily for reception in
classrooms and by people unable to attend classrooms. No floor action
was taken on these bills, but they became the subject of discussion in
the Senate during consideration of the WIPO Copyright and Performances
and Phonograms Treaty Implementation Act. After intensive discussions
among interested parties, it became clear that many complex and
interrelated issues were involved that could not be given adequate
consideration in the time available. Congress therefore provided for a
longer-term study in section 403 of the DMCA.
VI. Should Current Law Be Changed?
a. the views of the parties
The educational community (including both educators and academic
libraries) believes that a change in the law is required to optimize
the quality and availability of forms of distance education that take
full advantage of today's technological capabilities. Members of this
community argue that fair use is uncertain in its application to the
digital environment, and that the exemptions in section 110 are
outmoded and do not extend to the full range of activities involved in
digital distance education. They report that licensing for such uses is
not working well, and therefore does not offer a satisfactory
alternative. Some educators also note that distance education is
already an expensive proposition, involving substantial start-up and
maintenance costs, and warn that adding the cost of licensing fees for
copyrighted materials could make it prohibitive.
Copyright owners, on the other hand, do not believe statutory
amendment is necessary or advisable, pointing out that digital distance
education is flourishing under current law. They see the fair use
doctrine as strong and healthy, and are concerned that expanding the
section 110 exemptions would harm both their primary and secondary
markets. They assert that more efficient licensing systems are
developing, and that the reported difficulties in obtaining permissions
will ease with time and experience. Finally, they argue that educators
who wish to use preexisting copyrighted content in their courses should
regard licensing fees as one of the costs of distance education,
comparable to the purchase of the necessary hardware and software.
There is virtual unanimity that the doctrine of fair use is fully
applicable to uses of copyrighted works in the digital environment,
including in distance education. (This does not mean that all agree as
to which digital distance education activities would qualify as fair.)
As to the role of guidelines, the messages were mixed. Many copyright
owners recommend pursuing the development of guidelines regarding the
fair use of copyrighted materials in digital distance education, and
suggest that further discussion could be productive in achieving
greater mutual understanding and certainty. Educational and library
groups were less positive, expressing varying views. Some educators see
guidelines as valuable guides to decisionmaking; other participants are
critical of the concept or doubtful about the efficacy of any results.
As to the specific instructional exemptions, copyright owners argue
that section 110(2) should not be changed. They are concerned that a
broadening of the exemption would result in the loss of opportunities
to license works for use in digital distance education--a new, growing,
and potentially lucrative market. They urge that Congress not foreclose
the potential market by legislating prematurely or overbroadly.
The other major concern of copyright owners is the increased risk
of unauthorized downstream uses of their works posed by digital
technology. When works are distributed in digital form, once a student
obtains access, it is easy to further distribute multiple copies to
acquaintances around the world. Depending on the type of work involved
and the amount used, the result could be a significant impact on the
market for sales of copies.
Most educational and library groups, in contrast, support a
broadening of section 110(2). They view fair use alone as either not
clear enough or not extensive enough in its application. Their primary
goals are to avoid discrimination against remote site students in their
educational experience vis-a-vis on-site students; to avoid
discrimination against new technologies vis-a-vis old ones; and to
avoid the difficulties in licensing that many describe having
experienced. In general, the educational community seeks the following
changes: (1) elimination of the concept of the physical classroom as a
limitation on the availability of the exemption; (2) coverage of rights
in addition to performance and display, at least to the extent
necessary to permit digital transmissions; and (3) expansion of the
categories of works covered, by broadening the performance right
exemption to apply to works other than nondramatic literary and musical
works. Some would go further, advocating an exemption that allows
educators to do anything by means of digital transmission that they can
do in the classroom under section 110(1). Libraries in particular also
seek exemptions for additional activities, stressing the importance of
being able to give access to electronic reserves and other resource
materials in order to provide a high-quality educational experience for
students at remote sites.
As to the risks involved, educational institutions are willing to
take steps to safeguard the security of the materials they disseminate.
In fact, they point out that they already make such efforts; the use of
password protection and other access controls is widespread. Many also
require compliance with copyright policies and inform students, faculty
and staff about the law. Finally, educators believe that licensing
should continue to play some role in distance education.
b. analysis and recommendations
The analysis of whether the law should be changed is complicated by
the context: a time of rapid development in both technologies and
markets. While such rapid development is a hallmark of the digital age,
in the area of distance education we are at a particularly crucial
point in time. Sophisticated technologies capable of protecting content
against unauthorized post-access use are just now in development or
coming to market, although it is not clear when they will be widely
available in a convenient and affordable form that can protect all
varieties of works. Meanwhile, licensing systems for digital distance
education are evolving, including online and collective licensing
mechanisms, and initial fears are beginning to ebb.
Many of the concerns on all sides stem from the inability to depend
on the effective functioning of technological protections and licensing
mechanisms. 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 for educators.
The technical tools for both exist today; it will be clearer within the
next few years how successfully they can be integrated into the real
world of distance education. Given the timetable of the legislative
process, the question is what steps Congress can and should take in the
interim.
Over the course of this study, numerous issues have been raised and
discussed. Given the limited time allotted, the specific mandate for
the Register to consider primarily ``the need for an exemption from
exclusive rights of copyright owners for distance education through
digital networks,'' and the origin of that mandate in proposed
amendments to section 110(2), our analysis focuses on the appropriate
treatment under copyright law of materials delivered to students
through digital technology in the course of mediated instruction. We do
not address other uses of copyrighted works in the course of digital
distance education, including student use of supplemental or research
materials in digital form; the creation of multimedia works by teachers
or students; and the downloading and retention of materials by
students. Such activities, although an important part of digital
distance education, do not involve uses analogous to the performances
and displays addressed in section 110(2).
As a fundamental premise, the Copyright Office believes that
emerging markets should be permitted to develop with minimal government
regulation. When changes in technology lead to the development of new
markets for copyrighted works, copyright owners and users should have
the opportunity to establish mutually satisfactory relationships. A
certain degree of growing pains may have to be tolerated in order to
give market mechanisms the chance to evolve in an acceptable direction.
At some point, however, existing but dysfunctional markets may require
adjustments in the law. Timing is therefore key.
The desire to let markets evolve does not mean that the law must
remain frozen. Where a statutory provision intended to implement a
particular policy is written in such a way that it becomes obsolete due
to changes in technology, the provision may require updating if that
policy is to continue. Doing so may be seen not as preempting a new
market, but as accommodating existing markets that are being tapped by
new methods. In the view of the Copyright Office, section 110(2)
represents an example of this phenomenon.
The exemptions in sections 110(1) and (2) embody a policy
determination that performances or displays of copyrighted works in the
course of systematic instruction should be permitted without the need
to obtain a license or rely on fair use. The technological
characteristics of digital transmissions have rendered the language of
section 110(2) inapplicable to the most advanced delivery method for
systematic instruction. Without an amendment to accommodate these new
technologies, the policy behind the law will be increasingly
diminished.
At the same time, it must be borne in mind that existing law was
crafted to embody a balance of interests between copyright owners and
users of works. In order to maintain a comparable balance, the coverage
of an exemption cannot be expanded without considering the impact of
the expansion on markets for copyrighted works. If the law is updated
to address new technology, the risks posed by that technology must be
adequately taken into account.
Updating section 110(2) to allow the same activities to take place
using digital delivery mechanisms, while controlling the risks
involved, would continue the basic policy balance struck in 1976. In
our view, such action is advisable.
Other amendments have been suggested that would go further, and
entail varying degrees of change in legislative policy. These include
expanding the exemption to cover more categories of works or additional
exclusive rights beyond those necessary for digital delivery, and
otherwise resolving problems experienced in the licensing process.
Here, the elements of timing and burden of proof are critical. From a
pedagogical perspective, these suggested expansions are desirable. From
a copyright owner's perspective, they endanger primary or secondary
markets for valuable works. The question should not be whether users
have established a need to expand the exemption, any more than whether
copyright owners have established a need to retain its limits, but
rather whether given current conditions, the policy balance struck in
1976 should be recalibrated in certain respects.
We conclude that some policy recalibration may be appropriate at
this point, relating primarily to categories of works covered. In other
areas, we believe that existing restrictions should be retained and
markets permitted to evolve, subject to further review. Critical to
this conclusion is the continued availability of the fair use doctrine
as a safety valve.
1. Recommendations as to statutory language
In order to accomplish the goal of updating the language and the
policy balance of section 110(2), the Copyright Office offers the
following recommendations:
(a) Clarify meaning of ``transmission.'' It should be clarified
through legislative history that the term ``transmission'' in section
110(2) covers transmissions by digital means as well as analog.
(b) Expand coverage of rights to extent technologically necessary.
Because the exemption in its current form permits only acts of
performance and display, digital transmissions over computer networks
would not be excused. We therefore recommend expanding the scope of the
rights covered, in order to add those needed to accomplish this type of
transmission. The rights of reproduction and/or distribution should not
be added in their entirety, but only to the extent technologically
required in order to transmit the performance or display authorized by
the exemption.
(c) Emphasize concept of mediated instruction. An exemption that
includes elements of the reproduction right so as to allow a student to
access individual works asynchronously raises an unintended problem. If
an entire work can be viewed on a computer screen, repeatedly, whenever
a student chooses and for an indefinite duration, the performance or
display could conceivably function as a substitute for the purchase of
a copy. In updating section 110(2), it is therefore critical to ensure
that the performance or display is analogous to the type of performance
or display that would take place in a live classroom setting. This
might be accomplished by amending paragraph (A) of section 110(2),
which requires the performance or display to be ``a regular part of * *
* systematic instructional activities,'' to focus on the concept of
mediated instruction. Additional language could specify that the
performance or display must be made by or at the direction of an
instructor to illustrate a point in, or as an integral part of, the
equivalent of a class session in a particular course.
(d) Eliminate requirement of physical classroom. In its current
form, section 110(2) requires transmissions to be sent to a classroom
or similar place normally devoted to instruction, or to persons who
cannot attend a classroom. The nature of digital distance education,
where the goal is to permit instruction to take place anywhere, makes
this limitation conceptually and practically obsolete. Eliminating the
physical classroom limitation would better reflect today's realities.
At the same time, it is important to retain meaningful limitations
on the eligible recipients; the performances or displays should not be
made available to the general public. We recommend permitting
transmissions to be made to students officially enrolled in the course,
regardless of their physical location. Since today's digital and
scrambling technologies allow transmissions to be targeted more
precisely, the requirement should be added that the transmission must
be made solely, to the extent technologically feasible, for reception
by the defined class of eligible recipients.
(e) Add new safeguards to counteract new risk. Because the
transmission of works to students in digital form poses greater risks
of uncontrolled copying and distribution, a broadened exemption could
cause harm to markets beyond the primary educational market. It is
therefore critical, if section 110(2) is expanded to cover digital
transmissions, that safeguards be incorporated into the statute to
minimize these risks. We recommend including a number of safeguards as
conditions on the applicability of the exemption: First, any transient
copies permitted under the exemption should be retained for no longer
than reasonably necessary to complete the transmission. Second, those
seeking to invoke the exemption should be required to institute
policies regarding copyright; to provide informational materials to
faculty, students, and relevant staff members that accurately describe
and promote compliance with copyright law; and to provide notice to
students that materials may be subject to copyright protection.
Third, when works are transmitted in digital form, technological
measures should be in place to control unauthorized uses. In order to
effectively limit the risks to copyright owners' markets, these
measures should protect against both unauthorized access and
unauthorized dissemination after access has been obtained. The
exemption should require the transmitting institution to apply such
measures, described in simple and technology-neutral language. Because
no technology is one hundred percent effective, only measures that
``reasonably'' prevent these acts should be required. In addition, the
law should impose an obligation not to intentionally interfere with
protections applied by the copyright owners themselves. If copyrighted
works are to be placed on networks, and exposed to the resulting risks,
it is appropriate to condition the availability of the exemption on the
application of adequate technological protections.
(f) Maintain existing standards of eligibility. An educational
institution must be ``nonprofit'' to be eligible for the exemption in
section 110(2). There was extensive debate over the appropriateness of
retaining the ``nonprofit'' requirement, and/or adding a requirement of
accreditation. In the area of digital distance education, the lines
between for-profit and nonprofit have blurred, and the issue has arisen
as to how to guarantee the bona fides of an entity that is entitled to
the exemption at a time when anyone can transmit educational material
over the Internet. The Copyright Office is not convinced at this point
that a change in the law is desirable, given the policy implications of
permitting commercial entities to profit from activities using
copyrighted works without compensating the owners of those works; the
potential inconsistency with other provisions of the Act, including
section 110(1), that refer to ``nonprofit educational institutions'';
and the DMCA mandate to consult specifically with nonprofit educational
institutions and nonprofit libraries and archives. This is nevertheless
an important and evolving issue that deserves further attention.
(g) Expand categories of works covered. One of the most difficult
issues to resolve is whether to expand the categories of works exempted
from the performance right beyond the current coverage of nondramatic
literary and musical works. On the one hand, pedagogical considerations
militate against continuing to limit the types of works covered. On the
other hand, the existing distinctions have been embedded in the law for
more than twenty years, based on the potentially greater market harm to
works such as dramatic works or audiovisual works. The question is why
this policy judgment should be altered now.
The main categories of works that could be affected by an expansion
are audiovisual works, sound recordings, and dramatic literary and
musical works. In terms of primary markets, educational licensing may
represent a major source of revenue only for educational videos. The
potential effect on secondary markets, however, remains a serious
concern for all such works. This concern has been exacerbated beyond
the threats perceived in 1976 by the capacities of digital technology.
For entertainment products like motion pictures, transmission could
well substitute for students paying to view them elsewhere, and if
digital copies can be made or disseminated, could affect the broader
public market.
The considerations are different for sound recordings than for
other categories. Because there was no public performance right for
sound recordings when section 110(2) was enacted in 1976, educators
were free to transmit performances of sound recordings to students
(assuming the use of any other work embodied in the sound recording was
authorized by statute or license). When owners of sound recordings were
granted a limited public performance right in 1996, there was no
discussion of whether sound recordings should be added to the coverage
of section 110(2). This issue thus represents a new policy question
that has not yet been considered, rather than a potential change in a
judgment already made.
It is the exclusion of audiovisual works, however, about which
educators express the strongest concern, in part due to difficulties in
obtaining licenses for digital uses from motion picture producers.
Moreover, as digital distance education uses more multimedia works,
which incorporate audiovisual works and may be considered audiovisual
works themselves, the failure to cover this category may have an
increasing impact.
On balance we suggest a compromise. If audiovisual and other works
are added, it should be done in a limited way, with greater
restrictions than section 110(2) currently imposes. Thus, section
110(2) could be amended to allow performances of categories in addition
to nondramatic literary and musical works, but not of entire works. An
expanded exemption should cover only the performance of reasonable and
limited portions of these additional works.
It is important to note that under the current language of section
110(2), the portion performed would have to be the subject of study in
the course, rather than mere entertainment for the students, or
unrelated background or transitional material. This requirement,
combined with the limitation on the amount of the work that could be
used, should further serve to limit any impact on primary or secondary
markets. It nevertheless may be advisable to exclude those works that
are produced primarily for instructional use. For such works, unlike
entertainment products or materials of a general educational nature,
the exemption could significantly cut into primary markets, impairing
incentives to create.
(h) Require use of lawful copies. If the categories of works
covered by section 110(2) are expanded, we recommend an additional
safeguard: requiring the performance or display to be made from a
lawful copy. Such a requirement is already contained in section 110(1)
for the performance or display of an audiovisual work in the classroom.
(i) Add new ephemeral recording exemption. Finally, in order to
allow the digital distance education that would be permitted under
section 110(2) to take place asynchronously, we recommend adding a new
subsection to section 112, the ephemeral recordings exemption. The new
subsection would permit an educator to upload a copyrighted work onto a
server, to be subsequently transmitted under the conditions set out in
section 110(2) to students enrolled in her course. The benefit of the
new subsection should be limited to an entity entitled to transmit a
performance or display of a work in digital form under section 110(2).
Various limits should be imposed similar to those set out in other
subsections of section 112, including the requirements that any such
copy be retained and used solely by the entity that made it; that no
further copies be reproduced from it (except the transient
technologically necessary copies that would be permitted by section
110(2)); that the copy be used solely for transmissions authorized
under section 110(2); and that retention of the copy be limited in
time, remaining on the server in a form accessible to students only for
the duration of the course. In addition, the reproduction should have
to be made from a lawful copy. Finally, the entity making the
reproduction should not be permitted to remove technological
protections applied by the copyright owner to prevent subsequent
unlawful copying.
2. Clarification of fair use
Because there is confusion and misunderstanding about the fair use
doctrine, including the function of guidelines, we believe it is
important for Congress to provide some clarification. The statutory
language of section 107 is technology-neutral, and does not require
amendment. But if any legislative action is taken with regard to
distance education, we recommend that report language explicitly
address certain fair use principles.
First, the legislative history should confirm that the fair use
doctrine is technology-neutral and applies to activities in the digital
environment. It might be useful to provide some examples of digital
uses that are likely to qualify as fair. It should be explained that
the lack of established guidelines for any particular type of use does
not mean that fair use is inapplicable. Finally, the relationship of
guidelines to fair use and other statutory defenses should be
clarified. The public should understand that guidelines are intended as
a safe harbor, rather than a ceiling on what is permitted.
Although flexibility is a major benefit of the fair use doctrine,
the corollary is a degree of uncertainty. This drawback is exacerbated
by the context of new technologies, where little case law is available.
In the analog world, efforts such as the photocopying and off-air
taping guidelines have proved helpful in giving practical guidance for
day-to-day decisionmaking by educators. The Copyright Office believes
that additional discussion among the interested parties of fair use as
applied to digital distance education could be productive in achieving
a greater degree of consensus. In the past, efforts to develop
guidelines have been successful where a consistent group of
participants worked within a structure established under the auspices
of a government agency, with some direction provided by Congress.
3. Licensing issues
The fact that digital technologies impose new costs on delivering
distance education does not itself justify abandoning or regulating the
long-standing licensing system. Digital distance education entails the
use of computer hardware and software, and the employment of trained
support staff, all of which cost money. Digital distance education may
also entail the use of preexisting copyrighted works. This content is
at least as valuable as the infrastructure to deliver it, and
represents another cost to be calculated in the equation.
The critical question here is whether the markets in which distance
educators participate are dysfunctional, and if so, to a degree that
calls for a legislative remedy. While the problems experienced in
licensing are not unique to digital distance education, they are
heightened in the digital context due to factors such as fear about
increased risks; lack of certainty as to the scope of pre-digital
transfers of rights; and general unfamiliarity with new uses. Many of
these factors should diminish with time and experience, and there are
some indications that this is already happening. In addition, online
and collective licensing for digital uses will increasingly facilitate
transactions. Nevertheless, problems will persist for the foreseeable
future, as long as risks are perceived as high or benefits low.
One of the problems identified by educators has special
characteristics that can block the functioning of the marketplace.
Where the owner of the work simply cannot be located, there is no
opportunity to negotiate. Particularly because the problem of such
``orphan works'' may become more acute due to longer copyright terms
and the expanded audience for older works made possible by digital
technology, we believe that the time may be ripe for Congressional
attention to this issue generally.
We have not otherwise seen sufficient evidence of a need for a
legislative solution moving away from the general free market approach
of current law. Given the state of flux of online licensing systems and
technological measures, and the waning influence of the elements of
fear and unfamiliarity, problems of delay and cost may subside to an
acceptable level. At this point in time we recommend giving the market
for licensing of nonexempted uses leeway to evolve and mature. Because
the field of digital distance education is growing so quickly, and
effective licensing and technologies may be on the horizon, we suggest
revisiting the issue in a relatively short period of time.
4. International considerations
In making these recommendations, the Copyright Office is mindful of
the constraints of U.S. treaty obligations. In our view, the relevant
criteria of the Berne Convention and the TRIP's Agreement are
fundamentally in harmony with domestic policy considerations. We
believe that our recommendations are fully consistent with these
criteria, and would not alter the fundamental balance of either section
110(2) or 112, which have been part of U.S. law for more than twenty
years.
The balance struck in U.S. law will have an importance beyond our
borders, both through its potential application abroad and as a model
for other countries examining the issue. Whether a distance education
transmission initiated in one country and sent to a student in another
country constitutes an infringement, falls within a collective or
compulsory licensing scheme, or is exempted, will depend on which
country's law a court applies. This means both that the scope of the
exemptions in the U.S. Copyright Act may have an impact on foreign
markets for U.S. works, and that U.S. copyright owners and users have
an interest in the scope of exemptions or statutory licensing rules
adopted in foreign laws.
The Chairman. With that, we will adjourn until further
notice.
[Whereupon, at 10:52 a.m., the committee was adjourned.]