The Copyright Office has released a report on "Copyright and Digital Distance Education."
In the Digital Millennium Copyright Act of 1998, Congress charged the Copyright Office with responsibility to study how to promote distance education through digital technologies and report back with recommendations within six months. The report has been issued after an intensive process of identifying stakeholders, holding public hearings, soliciting comments, conducting research and consulting with experts in various fields.
The report gives an overview of the nature of distance education today; describes current licensing practices in digital distance education, including problems and future trends; describes the status of the technologies available or in development relating to the delivery of distance education courses and the protection of their content; and discusses prior initiatives to address the copyright issues involved. It also provides an analysis of how current copyright law applies to digital distance education, as well as an assessment of whether the law should be changed to accommodate new technologies, and if so, how.
Specifically, the Copyright Office recommends several amendments to section 110(2) of the U.S. Copyright Act, which exempts certain performances and displays in connection with instructional activities. The report states that "the technological characteristics of digital transmissions have rendered the language of section 110(2) inapplicable to the most advanced delivery method for systematic instruction." It recommends altering the section as follows:
- Update the exemption to permit digital transmissions over computer networks, expanding the rights covered to include those needed to accomplish such transmissions, to the extent technologically required.
- Eliminate the physical classroom requirement in section 110(2), permitting transmissions to students officially enrolled in the course, regardless of their physical location.
- Add language that focuses more clearly on the concept of mediated instruction to ensure that the performance or display is analogous to the type of performance or display that would take place in a live classroom.
- Add safeguards to minimize the greater risks of uncontrolled copying and distribution posed by digital transmission, including limiting the retention of any transient copies, requiring the adoption of copyright policies and education, and requiring the use of technological measures that reasonably prevent unauthorized access and dissemination.
- Retain the current "nonprofit" requirement for educational institutions seeking to invoke the exemption.
- Add a new provision to the Copyright Act to allow digital distance education to take place asynchronously, by permitting a copyrighted work to be uploaded onto a server for subsequent transmission to students under the conditions set out in section 110(2).
- Expand the categories of works exempted from the performance right beyond the current coverage of nondramatic literary or musical works, adding other types of works but allowing performances of only reasonable and limited portions.
The report further recommends that Congress provide clarification of the fair use doctrine in legislative history, to confirm that the doctrine applies in the digital environment and to explain the function of fair use guidelines. Finally, it concludes that licensing systems should not be abandoned or regulated because of problems that have been experienced in licensing works for digital distance education, but rather that the market should be given leeway to evolve and mature.
The report is available on the Web site of the U.S. Copyright Office at www.loc.gov/copyright under the heading "What's New." The report is also available for purchase through the Government Printing Office at (202) 512-1800.