The possibility of obtaining a college degree or a certification through distance learning promises students in remote areas, those with family responsibilities who cannot attend classes offered at regular times, and persons employed full-time the educational opportunities many have long sought. Distance learning also holds tremendous excitement for faculty members and for educational institutions that seek to meet the needs of underserved populations. Institutions and faculty members are working to determine what delivery mechanisms and instructional methodologies best facilitate teaching and learning for these students. Librarians are trying to decide how to provide distance learners with the research and study materials they need. In the United States, copyright law often proves to be an impediment to distance learning, and no one is sure how fair use will be extended to remote instruction in the digital age. Although this article focuses on the United States, U.S. law may have application in other countries and indeed internationally. Providing library services to distance learners under the existing copyright law may be easier than the offering of courses and degree programs generally.
What works well in the traditional classroom with face-to-face teaching may not be so successful for different levels of students in all types of distance learning offerings. Teachers must be able to experiment with various forms of instruction and to utilize the full array of technological advances to deliver courses at the convenience of the student. While educational institutions test different delivery mechanisms and methodologies, the technology continues to advance.
This article addresses the current state of the law in the United States regarding distance learning and copyright law. It focuses on how the limitations and exemptions to that law found in Section 107 (fair use), Section 110(1) (the classroom exemption) and Section 110(2) (instructional broadcasting) affect distance education. Despite many educators' wishes, it is not at all clear that the use of copyrighted works permitted in face-to-face teaching is permitted for distance learning. Currently, there are pending amendments that would redefine the meaning of face-to-face teaching in U.S. law to make it much easier to use copyrighted works in distance learning to parallel uses in the traditional classroom. Additionally, this article also discusses providing library services to distance learners.
The Current Law
The Copyright Act, 17 U.S.C. Sections 101-1101 (1994) recognizes the unique position and importance of education by providing crucial exemptions to the exclusive rights of the copyright holder. Both tradition and Congress support the notion that teaching and learning occupy a unique place in our society such that using copyrighted works in education may trump even the exclusive rights of copyright owners. Section 106 of the Copyright Act gives copyright holders a bundle of five rights: reproduction, distribution, adaptation, performance and display. Referred to as the exclusive rights, fortunately for educators and students, several subsequent sections of the Act restrict the exclusive rights of the copyright holder.
The most important of these limitations is Section 107, fair use. Fair use is a privilege that permits one other than the copyright owner to reproduce, distribute, adapt, perform or display a work; in other words, activities that otherwise would be within the exclusive rights of the copyright holder. The Act states that despite the grant of exclusive rights under Section 106, "...[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or any other means specified by that section for purposes such as criticism, comment, news reporting, teaching (including multiple copying for classroom use), scholarship or research, is not an infringement of copyright." Thus, teaching is mentioned directly in the text of Section 107. The section then lists four factors that a court will consider in determining whether a use is a fair use. The factors include: (1) purpose and character of the use, (2) nature of the copyrighted work, (3) amount and substantiality of the use, and (4) nature of the copyrighted work.
Additionally, Section 110 provides important exemptions for nonprofit educational institutions. Section 110(1), referred to as the "classroom exemption," is one of the best exemptions provided in U.S. copyright law. It provides an absolute exemption to the exclusive rights of the copyright holder for performances and displays in the classroom if certain conditions are met. The performance or display must be in the course of face-to-face teaching, in a classroom, and, if the work performed is a motion picture or other audiovisual work, the copy must have been lawfully made. There is no restriction on the types of works that are included. Although "classroom" is broadly defined to include any place where instruction is occurring such as laboratories, gymnasiums and libraries when the class comes to the library, the face-to-face restriction excludes distance learning from this particular exemption.
Section 110(2) covers distance learning, but it is much more restrictive than 110(1). When the Act was passed in 1976, the only type of distance learning that Congress envisioned involved television technology. Today, one might consider this to mean transmitting rather than just instructional broadcasting. While Section 110(1) is very broad, in contrast, Section 110(2) is quite narrow. First, only certain types of works may be performed, specifically nondramatic literary and musical works may be transmitted for distance learning, although any work may be displayed. Second, the transmission of the performance or display must be part of the systematic instructional activities of the institution. Third, reception must be in a classroom or other place similarly devoted to instruction, although disabled persons may receive the transmission anywhere if their condition prevents attendance at a regular classroom. Fourth, the performance must be directly related and of material assistance to the teaching content of the transmission. Each of these four conditions causes difficulty for modern distance learning.
The restriction on the types of works that may be performed is particularly difficult. It is counterintuitive to teachers that they can use a videotape in face-to-face teaching without seeking permission from the copyright holder, but if that same course is offered to distance learners, use of the tape requires that permission be sought and royalties be paid if the copyright owner requests payment. It seems particularly silly if the course is offered to students face-to-face in a classroom and is simultaneously transmitted to distance learners. Yet, this is exactly what the Act requires. Many schools currently seek permission and pay fees to use videotapes for distance learning. Some schools simply black out the time for distance learners when a tape is being shown to students in the classroom. Others probably ignore the law.
The argument made by copyright holders is that absent distance learning courses, they would have sold individual copies of their works to the receiving sites. Thus, owners lose sales and should be compensated in the form of royalties for performances of their works outside of that permitted by Section 110(2).
Today most distance learning courses are received in a classroom which meets the requirements of the statute. Further, there are educators who believe that there should be a teacher at the receiving site to direct class discussion, etc. Despite this, classrooms are not likely to remain the dominant place for reception of such programs, especially as online courses are developed. Currently, many educational institutions offer distance learning courses through television technology, and reception of that programming is in the home. Reception of courses in the home by non-disabled learners does not comply with the requirements in the Act.
There are also questions about whether works like background qualify as being directly related to and of material assistance to the teaching content of the course. Displays that illustrate particular points of the lecture clearly are related, but if the instructor chooses art work that simply decorates or adds visual interest, it may not so qualify. Thus, Section 110(2) is problematic in the digital age.
Pending Amendments
Two bills were introduced in the fall of 1997 which would ensure that fair use is extended into the digital age. Senate Bill 1146, the Digital Copyright Clarification and Technology Education Act of 1997 was introduced in September by Senator Ashcroft. In November, the Boucher-Campbell bill, House Bill 3048, the Digital Era Copyright Enhancement Act, was introduced. Although not identical, both bills include provisions that will aid distance learning. They state directly that neither the means by which a work has been performed, displayed or distributed nor the application of an effective technological measure affects fair use. Thus, fair use applies regardless of the technological measures by which the copyright owner chooses to make the work available.
Neither bill gives the education community a blank check for distance learning, but they do make it clear that distance learning is not limited to analog broadcast and closed circuit television. Both bills would amend Section 110(2) by adding the word "distribution" to performance and display of a work. Further, the limitation on the types of works that may be used for distance learning and on the place of reception are removed. Passage of these bills would considerably facilitate teaching for distance learning courses and remove many of the copyright restrictions that impede distributed education. On the other hand, these bills do not give institutions a free hand; they will continue to pay license fees for reproducing works, for producing coursepacks for distance learners whether in print or digital format and for the use of works that are not directly related to the teaching content of the transmission. Major library associations, including the American Library Association, along with the Digital Future Coalition, have urged librarians and others not only to support this legislation but also to contact their congressional representatives to encourage their support and signing on as co-sponsors of the bills.
Copyright Problems for Online Course
If an online course contains all of the materials a student needs for the course, and if the copyright for some of that materials is not owned by the teacher or the institution offering the course, it is unlikely that the provisions of Section 110(2) or even fair use can be met. Such a course is more similar to the old correspondence-type course. If the online course contains the full text of an article or other copyrighted work, then the work is reproduced each time a student taking the course downloads the work or prints it. If the course contains the performance of a videotape, the performance is outside the confines of the existing Section 110(2) exemption. Further, the tape is duplicated each time a student copies the work in order to view it on a television.
Should the work be viewed or performed on the computer screen, there is still an argument that duplication into the computer's RAM is a reproduction that triggers the copyright owner's exclusive rights. Whether such temporary copies constitute a reproduction has not been finally determined, and there are cases that go both ways. Both the Ashcroft and Boucher-Campbell bills would exempt incidental copies such as those in RAM as being transitory and not a part of the copyright owner's exclusive rights.
Library Service to Distance Learners
Libraries in nonprofit educational institutions are fortunate in that they can treat students who are taking distance learning courses as primary clientele. In order for a library to qualify for the library exemption, it must meet three requirements: (1) the reproduction and distribution must not be for direct or indirect commercial advantage, (2) the library must be open to the public or to researchers doing research in the same or a similar field and (3) the copies must contain a notice of copyright. Thus, upon the request from a distance learner, the library can give him or her a copy of a single article from a periodical issue or a chapter of a book under Section 108(d) if the copy becomes the property of the user, the library has no notice that the copy will be used for other than fair use purposes and the library provides the Register of Copyright's warning as mandated. (37 C.F.R. Section 201.14 (1997)).
Most libraries maintain that they may also provide an electronic copy of an article to a user as long as the copy meets the requirements of Section 108(d) including that the library does not retain the electronic copy. Should the article be one from an electronic journal to which the library subscribes, then the weight of authority appears to be that the license agreement controls whether a copy may be provided to students not physically present on the campus. According to Section 108(f)(4) of the Copyright Act, nothing "in any way affects...any contractual obligations assumed at any time by the library...when it obtained a copy...of a work in its collection." Clearly, in negotiating licenses for full-text journals and other materials, libraries should insist that access to any student enrolled in a course offered by that institution be permitted access under the terms of the license.
At the request of individual faculty members, libraries maintain reserve collections of photocopied materials for courses. These consist of materials developed by the faculty member as well as copies of copyrighted articles, book chapters, etc. Copies of these materials may be provided to distance learners under the same conditions that they are made available to on-campus students. However, libraries should note that under the 1982 ALA Model Policy for Reserve Collections, materials photocopied for reserve should not constitute all of the materials for a course. This would represent a coursepack, and two important court decisions have indicated that permission should be sought and royalties paid for coursepacks. (See Basic Books, Inc. v. Kinko's, 758 F. Supp. 1522 (S.D.N.Y. 1991)
As libraries develop electronic reserve collections, they should develop policies that conform with fair use. Further, in establishing such systems, libraries can ensure that distance learners have access to materials it has digitized for reserves. An important issue for electronic reserves has been authentication and validation of users. See User Authentication and Authorization in a Networked Library Environment
Conclusion
Only time will tell whether Congress will recognize that teaching and learning has changed significantly in the past two decades. Face-to-face teaching may have been the norm in 1976, but this may change in the future. Even if the dominant mode of instruction remains one in which students and a teacher are physically present in the same place, clearly distributed education will increase dramatically. Whether copyright law will favor education with a broader exemption for distance learning than currently exists in the statute is unsettled. If there is no amendment, then copyright will continue to impede distance learning. If the pending bills pass, then the balance will be tipped in favor of facilitating distance learning.
Online Resources
Laura Gasaway
University of North Carolina
E-mail: unclng@email.unc.edu
Laura N. Gasaway (Lolly) has been Director of the Law Library and Professor of Law at the University of North Carolina since 1985. She teaches courses in Intellectual Property and Cyberspace Law in the law school and Law Librarianship and Legal Resources in the School of Information and Library Science. She obtained her B.A. and M.L.S. degrees from Texas Woman's University, and her J.D. degree from the University of Houston. Prior to coming to Chapel Hill, she held the same position at the University of Oklahoma from 1975-84 and at the University of Houston from 1973-75. Lolly is a past president of the American Association of Law Libraries and is a Fellow of the Special Libraries Association and has served on and chaired various committees of both associations, including their Copyright Committees. She served on the American Bar Association's Accreditation Committee from 1987-95. She has written widely on both copyright and in law library management issues and is a frequent speaker on these issues.
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The Journal of Library Services for Distance Education <http://www.westga.edu
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State University of West Georgia - Carrollton, Georgia Vol. I, No. 2 - June 1998 - ISSN: 1096-2123 |