[Senate Hearing 107-221]
[From the U.S. Government Publishing Office]
S. Hrg. 107-221
PROMOTING TECHNOLOGY AND EDUCATION: TURBO-CHARGING THE SCHOOL BUSES ON
THE INFORMATION HIGHWAY
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HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
MARCH 13, 2001
__________
Serial No. J-107-5
__________
Printed for the use of the Committee on the Judiciary
_______
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76-914 WASHINGTON : 2002
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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
JEFF SESSIONS, Alabama RUSSELL D. FEINGOLD, Wisconsin
SAM BROWNBACK, Kansas CHARLES E. SCHUMER, New York
MITCH McCONNELL, Kentucky RICHARD J. DURBIN, Illinois
MARIA CANTWELL, Washington
Sharon Prost, Chief Counsel
Makan Delrahim, Staff Director
Bruce Cohen, Minority Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Cantwell, Hon. Maria, a U.S. Senator from the State of Washington 63
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 3
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 16
WITNESSES
Adler, Allan R., Vice President for Legal and Governmental
Affairs, Association of American Publishers, Washington, DC.... 21
Carpentier, Gary, Adjunct Professor of Law, Washington College of
Law, American University, Washington, DC....................... 35
Heeger, Gerald A., President, University of Maryland University
College, College Park, MD...................................... 17
LeBlanc, Paul, President, Marlboro College, Marlboro, VT......... 32
Peters, Marybeth, Register of Copyrights, Washington, DC......... 9
Siddoway, Richard M., Principal, Utah Electronic High School,
Salt Lake City, Utah........................................... 30
QUESTIONS AND ANSWERS
Responses of Allan Robert Adler to questions submitted by Senator
Leahy.......................................................... 43
Response of Allan Robert Adler to a question from Senator Blanche
L. Lincoln submitted on her behalf by Senator Leahy............ 50
Responses of Gary Carpentier to questions submitted by Senator
Leahy.......................................................... 51
Responses of Gerald A. Heeger to questions submitted by Senator
Leahy.......................................................... 53
Responses of Richard M. Siddoway to questions submitted by
Senator Leahy.................................................. 56
Responses of Marybeth Peters to questions submitted by Senator
Leahy.......................................................... 58
Responses of Gerald A. Heeger to questions submitted by Senator
Thurmond....................................................... 60
Responses of Marybeth Peters to questions submitted by Senator
Thurmond....................................................... 61
PROMOTING TECHNOLOGY AND EDUCATION: TURBO-CHARGING THE SCHOOL BUSES ON
THE INFORMATION HIGHWAY
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TUESDAY, MARCH 13, 2001
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in room
SD-226, Dirksen Senate Office Building, Hon. Orrin G. Hatch,
Chairman of the Committee, presiding.
Present: Senators Hatch and Leahy.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. I am pleased to welcome you all to this
hearing this morning on S. 487, the Technology Education and
Copyright Harmonization Act, or simply the TEACH Act, which I
introduced with my distinguished colleague, Senator Leahy.
This legislation updates the education and distance
learning provisions of the copyright law for the 21
st century, allowing students and teachers to
benefit from the deployment of advanced digital transmission
technologies like the Internet in education.
Let me thank Marybeth Peters, the Register of Copyrights,
and her staff in the Copyright Office for their hard work in
developing this legislation, as well as the report upon which
it is based.
I have a longer statement that I will have inserted in the
record, but in the interest of time I will just make a few
short comments.
Distance education and the use of high-technology tools
such as the Internet in education hold great promise for
students, especially in States like Utah and Vermont where
distances can be great between students and learning
opportunities. I think it is similarly important for any State
that has students who seek broader learning opportunities than
they can reach or obtain in their own local area.
Any education reforms moved in the Congress this year
should include provisions that help deploy high-technology
tools, including the Internet, to give our students the very
best educational experience we can offer. By using these tools,
students in remote areas of my home State of Utah are becoming
able to link up to resources previously available only to those
in cities or at prestigious educational institutions.
Limited access to language instructors in remote areas or
particle accelerators in most high schools limit access to
educational opportunity. These limits can be overcome to a
revolutionary degree by online offerings which can combine
sound, video, and interactivity in exciting new ways. And new
experiences that transcend what is possible in the classroom,
such as hyper-texts linked directly to secondary sources, are
possible only in the online world.
I am particularly pleased that we will hear from Mr.
Richard Siddoway, the Principal of the Electronic High School
of Utah, which links high school students all over Utah to the
best educational opportunities the State can currently provide.
Promoting the use of advanced technology like the Internet
can wholly transform the educational experience for many
students and create broad access to learning opportunities that
have been out of reach for many until now. S. 487, the TEACH
Act, through modest updating of the Copyright Act, can help
bring these opportunities closer to every student in our States
and our Nation.
With that, I will put the rest of my statement in the
record and we will turn to Senator Leahy.
[The opening statement of Chairman Hatch follows:]
Opening Statement of Hon. Orrin Hatch, a U.S. Senator from the State of
Utah
I am pleased to welcome you all to this hearing this morning on S.
487, the ``Technology Education And Copyright Harmonization Act'' or
simply the ``TEACH Act,'' which I introduced with my distinguished
colleague, Senator Leahy. This legislation updates the education and
distance learning provisions of the copyright law for the 21'' century,
allowing students and teachers to benefit from deployment of advanced
digital transmission technologies like the Internet in education. Let
me thank Marybeth Peters, the Register of Copyrights, and her staff in
the Copyright Office, for their hard work in developing this
legislation, as well as the report upon which it is based. They have
done admirable work in moving forward the deployment of the Internet
and digital transmission systems in education while maintaining
safeguards for the protection of the copyrighted works used to enhance
the educational experience.
Distance education, and the use of high technology tools such as
the Internet in education, hold great promise for students in states
like Utah. Any education reforms moved in the Congress this year should
include provisions that help deploy high technology tools, including
the Internet, to give our students the very best educational experience
we can offer. By using these tools, students in remote areas of my home
state of Utah 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 demonstrations of principles that until now
they have now only read about. Some language students in remote areas
may not have access to a French or Russian or Japanese teacher, and
high school physics students do not usually have access to particle
accelerators. Other students may not be able to leave their homes for
health, disability, or other reasons. Using digital transmission
technology, including the Internet, these students can participate in
school and have access to these learning opportunities in a way that
was previously impossible for them. 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.
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, as well as a number of individual universities in
the state have consistently been recognized as technology and web-
education innovators. Such national recognition reflects, in part,
Utah's high-tech industrial base, its learning-oriented population, and
the fact that Utah was the first state with a centrally coordinated
statewide system for distance learning. As the Copyright Office was
preparing the report that resulted in this legislation, I was pleased
to host the Register of Copyrights, who is here today, at a distance
education exposition and copyright round table that took place at the
nerve center of that system--the Utah Education Network--where we saw
many exciting technologies being developed and implemented in Utah, by
Utahns, to make distance education a reality. At the event in Salt Lake
City, Ms. Peters and I dropped in on a live on-line 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 entire length of the state. We will hear more about these efforts
today, especially what Utah is doing in distance learning for secondary
school students, from the principal of the Electronic High School of
Utah, Mr. Richard Siddoway. We are happy to have him here today to
represent Utah.
The legislation discussed today, through updates to the copyright
law, will make it easier for the teacher who connects with her students
online to enhance the learning process by illustrating music
appreciation principles with appropriately limited sound recordings or
illustrate visual design or story-telling principles with appropriate
movie clips. Or she might create wholly new experiences such as making
a hypertext poem that links significant words or formal elements to
commentary, similar uses in other contexts, or other sources for deeper
understanding, all accessible at the click of a mouse. These wholly new
interactive educational experiences, or more traditional ones now made
available around the students' schedule, will be made more easily and
more inexpensively by this legislation. It does this by making clear a
``safe harbor'' for educational uses of copyrighted works for which
there need not be negotiations or licensing arrangements. Beyond the
legislative safe harbor provided by this legislation, opportunities for
students and lifetime learners of all kinds, in all kinds of locations,
is limited only by the human imagination and the cooperative creativity
of the creators and users of copyrighted works. I hope that creative
licensing arrangements will be spurred to make even more exciting
opportunities available to students and lifelong learners, and that
incentives to create those experiences will continue to encourage
innovation in education, art and entertainment online. The
possibilities for everyone in the wired world are thrilling to
contemplate.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman, and I am very happy
to be here with you as a cosponsor of the TEACH Act.
Later this morning, as I do once a week, I will be doing an
online chat with a school in Vermont. Usually, it is at a grade
school level. It has done two things. One, I have improved my
ability to type. I type a lot faster with many fewer mistakes
because if I make the mistakes, they quickly point them out.
But I become more and more encouraged when I hear some of
the questions being asked by the youngsters in Vermont. I
encourage the national media to just look at some of those
transcripts and see some of the really good questions the kids
ask and the answers they give when I ask them questions. It is
encouraging. Paul LeBlanc is here, and knows first-hand about
Vermont students. I have talked before about the advantage of
these online chats.
When you think, Senator Hatch, of the kinds of things we
have done to upgrade our copyright, patent and trademark laws,
at the same time protecting the important interests of users of
the creative work, so much of that has helped the vibrant
economy of this Nation.
We know that education is a critical component of this
information age, and if we don't have adequate information, we
are not going to be able to harness the technological tools
that we have. I think how wonderful it is going to a little
school in what we call Grand Isle County at home. This is an
archipelago of little islands in the middle of Lake Champlain,
one of the most beautiful spots on Earth.
I recall being in one of the schools wearing a mike with a
camera on me. All these schools are held together by a screen
on the wall and as you move around the class, the camera would
automatically follow the mike. After a few minutes of it, you
actually think you are talking back and forth with a student in
the class, but they are separated by a bridge or a ferry boat
ride away from where you are.
As part of the Digital Millennium Copyright Act, DMCA,
Senator Hatch and I had asked the Copyright Office to study the
complex copyright issues involved in distance education. We are
fortunate that Marybeth Peters, who sometimes probably feels
she lives in this Committee room because we are always calling
on her for help, is here. She is the Register of Copyrights and
she met with many interested people, including Vermonters, to
hear their concerns on this issue. Vermonters are concerned,
which is one of the reasons why Paul LeBlanc, the President of
Marlboro College, is here.
In the copyright office report, which was released in May
1999--and I would urge people to read it--valuable suggestions
were made on how we could make some modest changes in our
copyright law and go a long way to foster the appropriate use
of copyrighted works in valid distance learning activities.
What Senator Hatch and I have introduced incorporates those
recommendations so that you can extend face-to-face classroom
instruction over the Internet.
In rural areas, it is so important. If we are going to do
away with the digital divide, we have got to have these rural
areas connected. I graduated in a high school class of 29. I
did have an uncle of mine who told me that, coming from a small
town and a small class like that, I would never amount to
anything.
Chairman Hatch. Was that in 1929?
Senator Leahy. Yes, it was, long before you were born, Mr.
Chairman.
[Laughter.]
Senator Leahy. The chairman, although he has more hair, is
actually older than I am.
I did ask my uncle recently what he thought now. It speaks
to his politics. He says nothing has changed his mind and he
still feels I haven't amounted to anything
The Vermont Telecommunications Plan identified distance
learning as being critical to Vermont's development, but that
same plan could have been written in rural Utah or rural
California or Texas. It is crucial for these States to be
competitive. We use the Vermont Interactive Television Network,
a two-way videoconferencing system in communities, schools, and
businesses. I use it all the time up there, and I am proud that
I helped start the system by getting funding. The people who
understand it a lot better than I ever will are the ones who
make it work.
The Copyright Office said that the computer is the most
versatile of distance education instruments, both for the
material it can display and the flexibility of it. These are
things that we have to look at. The Web-Based Education
Commission, headed by former Senator Bob Kerrey, said ``Current
copyright law governing distance education . . . was based on
broadcast models of telecourses for distance education. That
law was not established with the virtual classroom in mind.''
It said the copyright laws were inappropriately restrictive.
Now, with the Copyright Office's own conclusions and what
Senator Hatch and I are trying to do, I think we can change
that. We made efforts in the bill to address the valid concerns
of both the copyright owners and the education and library
community, and I think we can work together and have something
better.
In the end, we can all benefit by this. We should ask
ourselves, if we don't use all these tools in every single part
of our country, because none of us know where the geniuses of
tomorrow are--if we don't use all these tools, what kind of an
economic world will our children and our grandchildren have? If
we do use them all, look at the unbelievable things that are
available, things that even a generation ago nobody could have
imagined.
So thank you, Mr. Chairman, and I will put my whole
statement in the record.
[The opening statement of Senator Leahy follows:]
Opening Statement Of Hon. Patrick J. Leahy, a U.S. Senator from the
State of Vermont
An important responsibility of the Senate Judiciary Committee is
fulfilling the mandate set forth in Article 1, section 8 of the
Constitution, ``to promote the progress of science and useful arts by
securing for limited times to authors and inventors the exclusive right
to their respective writings and discoveries.'' Chairman Hatch and I,
and other colleagues on the Judiciary Committee, have worked together
successfully over the years to update and make necessary adjustments to
our copyright, patent and trademark laws to carry out this
responsibility. We have strived to do so in a manner that advances the
rights of intellectual property owners while protecting the important
interests of users of the creative works that make our culture a
vibrant force in this global economy.
Several years ago, as part of the Digital Millennium Copyright Act
(DMCA), we asked the Copyright Office to perform a study of the complex
copyright issues involved in distance education and to make
recommendations to us for any legislative changes. In conducting that
study, Marybeth Peters, the Registrar of Copyrights met informally with
interested Vermonters in Burlington, Vermont, to hear their concerns on
this issue. Today, I welcome Paul LeBlanc, the President of Marlboro
College in Vermont, and the other witnesses, who can tell us about the
needs of educators using distance education in innovative ways.
The Copyright Office released its report in May, 1999, at a hearing
held in this Committee, and made valuable suggestions on how modest
changes in our copyright law could go a long way to foster the
appropriate use of copyrighted works in valid distance learning
activities. Senator Hatch and I have introduced the TEACH Act, S. 487,
that incorporates the legislative recommendations of that report. This
legislation will help clarify the law and allow educators to use the
same rich material in distance learning over the Internet that they are
able to use in face-to-face classroom instruction.
The growth of distance learning is exploding, in part because it is
responsive to the needs of older, non-traditional students. According
to the Copyright Office report, the typical average distance learning
student is 34 years old, employed full-time and has previous college
credit. More than half are women. These are the people with busy
schedules who need the flexibility that on-line programs offer: virtual
classrooms accessible when the student is ready--and free to log-on.
Moreover, in rural areas, distance education provides an opportunity
for schools to offer courses that their students might otherwise not be
able enjoy. In increasing numbers, students in other countries are
benefitting from educational opportunities here through U.S. distance
education programs.
In Vermont and many other rural states, distance learning is a
critical component of any quality educational and economic development
system. In fact, the most recent Vermont Telecommunications Plan, which
was published in 1999 and is updated at regular intervals, identifies
distance learning as being critical to Vermont's development. It also
recommends that Vermont consider ``using its purchasing power to
accelerate the introduction of new [distance learning] services in
Vermont.'' Technology has empowered individuals in the most remote
communities to have access to the knowledge and skills necessary to
improve their education and ensure they are competitive for jobs in the
21st Century.
Several years ago, I was proud to work with our state in
establishing the Vermont Interactive Television network. This constant
two-way video-conferencing system can reach communities, schools and
businesses in every corner of the state. Since we first successfully
secured funds to build the backbone of the system, Vermont has
constructed fourteen sites. The VIT system is currently running at full
capacity and has demonstrated that in Vermont, we value technology
highways just as we value our transportation highways.
No one single technology should be the platform for distance
learning. In Vermont, creative uses of available resources have put in
place a distance learning system that employs T-1 lines in some areas
and traditional internet modem hook-ups in others. Several years ago,
the Grand Isle Supervisory Union received a grant from the U.S.
Department of Agriculture to link all the schools within the district
with fiber optic cable. There are not a lot of students in this
Supervisory Union but there is a lot of land separating one school from
another. The bandwidth created by the fiber optic cables has not only
improved the educational opportunities in the four Grand Isle towns,
but it has also provided a vital economic boost to the area's
businesses.
While there are wonderful examples of the use of distance learning
inside Vermont, the opportunities provided by these technologies are
not limited to the borders of one state, or even one country. Champlain
College, a small school in Burlington, Vermont, has shown this is true
when it adopted a strategic plan to provide distance learning for
students throughout the world and now has more students enrolled than
any other college in Vermont. The campus in Vermont has not been
overwhelmed with the increase. Instead, Champlain now teaches a large
number of students overseas through its on-line curriculum. Similarly,
Marlboro College in Marlboro, Vermont, offers innovative graduate
programs designed for working professionals with classes that meet not
only in person but also online.
The Internet, with its interactive, multi-media capabilities, has
been a significant development for distance learning. By contrast to
the traditional, passive approach of distance learning where a student
located remotely from a classroom was able to watch a lecture being
broadcast at a fixed time over the air, distance learners today can
participate in real-time class discussions, or in simultaneous
multimedia projects. The Copyright Office report confirms what I have
assumed for some time--that ``the computer is the most versatile of
distance education instruments,'' not just in terms of flexible
schedules, but also in terms of the material available.
More than 20 years ago, the Congress 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. At the same
time, Congress also recognized the potential for unauthorized
transmissions of works to harm the markets for educational uses of
copyrighted materials. The present Copyright Act strikes a careful
balance and includes two narrowly crafted exemptions for distance
learning, in addition to the general fair use exemption.
Under current law, the performance or display of any work in the
course of face-to-face instruction in a classroom is exempt from the
exclusive rights of a copyright owner. In addition, the copyright law
allows transmissions of certain performances or displays of copyrighted
works to be sent to a classroom or a similar place which is normally
devoted to instruction, to persons whose disabilities or other special
circumstances prevent classroom attendance, or to government employees.
While this exemption is technology neutral and does not limit
authorized ``transmissions'' to distance learning broadcasts, the
exemption does not authorize the reproduction or distribution of
copyrighted works--a limitation that has enormous implications for
transmissions over computer networks. Digital transmissions over
computer networks involve multiple acts of reproduction as a data
packet is moved from one computer to another.
The need to update our copyright law to address new developments in
online distance learning was highlighted in the December, 2000, report
of the Web-Based Education Commission, headed by former Senator Bob
Kerrey. This Commission noted that:
Current copyright law governing distance education . . . was based on
broadcast models of telecourses for distance education.
That law was not established with the virtual classroom in
mind, nor does it resolve emerging issues of multimedia
online, or provide a framework for permitting digital
transmissions.'' (p. 95).
This report further observed that ``This current state of affairs
is confusing and frustrating for educators. . . . Concern about
inadvertent copyright infringement appears, in many school districts,
to limit the effective use of the Internet as an educational tool.''
(pp. 95-96). In conclusion, the report concluded that our copyright
laws were ``inappropriately restrictive.'' (p. 97).
The TEACH Act makes three significant expansions in the distance
learning exemption in our copyright law, while minimizing the
additional risks to copyright owners that are inherent in exploiting
works in a digital format. First, the bill eliminates the current
eligibility requirements for the distance learning exemption that the
instruction occur in a physical classroom or that special circumstances
prevent the attendance of students in the classroom.
Second, the bill clarifies that the distance learning exemption
covers the temporary copies necessarily made in networked servers in
the course of transmitting material over the Internet.
Third, the current distance learning exemption only permits the
transmission of the performance of ``non-dramatic literary or musical
works,'' but does not allow the transmission of movies or videotapes,
or the performance of plays. The Kerrey Commission report cited this
limitation as an obstacle to distance learning in current copyright law
and noted the following examples: A music instructor may play songs and
other pieces of music in a classroom, but must seek permission from
copyright holders in order to incorporate these works into an online
version of the same class. A children's literature instructor may
routinely display illustrations from childrens' books in the classroom,
but must get licenses for each one for on online version of the course.
To alleviate this disparity, the TEACH Act would amend current law
to allow educators to show limited portions of dramatic literary and
musical works, audiovisual works, and sound recordings, in addition to
the complete versions of nondramatic literary and musical works which
are currently exempted.
This legislation is a balanced proposal that expands the
educational use exemption in the copyright law for distance learning,
but it also contains a number of safeguards for copyright owners. In
particular, the bill excludes from the exemption those works that are
produced primarily for instructional use, because 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. Indeed, the Web-Based Education
Commission urged the development of ``high quality online educational
content that meets the highest standards of educational excellence.''
Copyright protection can help provide the incentive for the development
of such content.
In addition, the bill requires the use by distance educators of
technological safeguards to ensure that the dissemination of material
covered under the exemption is limited only to the students who are
intended to receive it.
Finally, the TEACH Act directs the Copyright Office to conduct a
study on the status of licensing for private and public school digital
distance education programs and the use of copyrighted works in such
programs, and to convene a conference to develop guidelines for the use
of copyrighted works for digital distance education under the fair use
doctrine and the educational use exemptions in the copyright law. Both
the Copyright Office report and the Kerrey Commission noted
dissatisfaction with the licensing process for digital copyrighted
works. According to the Copyright Office, many educational institutions
``describe having experienced recurrent problems [that] . . . can be
broken down into three categories: difficulty locating the copyright
owner; inability to obtain a timely response; and unreasonable prices
or other terms.'' Similarly, the Kerrey Commission report echoed the
same concern. A study focusing on these licensing issues will hopefully
prove fruitful and constructive for both publishers and educational
institutions.
The Kerrey Commission report observed that ``[c]oncern about
inadvertent copyright infringement appears, in many school districts,
to limit the effective use of the Internet as an educational tool.''
For this reason, the Kerrey Commission report endorsed ``the U.S.
Copyright Office proposal to convene education representatives and
publisher stakeholders in order to build greater consensus and
understanding of the `fair use' doctrine and its application in web-
based education. The goal should be agreement on guidelines for the
appropriate digital use of information and consensus on the licensing
of content not covered by the fair use doctrine.'' The TEACH Act will
provide the impetus for this process to begin.
I appreciate that, generally speaking; copyright owners believe
that current copyright laws are adequate to enable and foster
legitimate distance learning activities. As the Copyright Office report
noted, copyright owners are concerned that ``broadening the exemption
would result in the loss of opportunities to license works for use in
digital distance education'' and would increase the ``risk of
unauthorized downstream uses of their works posed by digital
technology.'' Based upon its review of distance learning, however, the
Copyright Office concluded that updating section 110(2) in the manner
proposed in the TEACH Act is ``advisable.'' I agree. At the same time
we have made efforts to address the valid concerns of both the
copyright owners and the educational and library community, and I look
forward to working with all interested stakeholders as this legislation
is considered by the Judiciary Committee and the Congress.
Distance education is an important issue to both the Chairman and
to me, and to the people of our States. I look forward to hearing the
testimony of all the witnesses.
Chairman Hatch. Well, thank you, Senator Leahy.
We have a distinguished panel today to discuss distance
learning on the Internet and our copyright reforms to encourage
its further deployment.
First, we will hear from Ms. Marybeth Peters, the Register
of Copyrights. She and her Copyright Office staff have done
yeoman's service on this issue, writing a comprehensive report
on the issue and making a major contribution in the drafting of
this legislation.
It is fair to say that no one knows more about the
copyright issues surrounding digital distance learning than Ms.
Peters, and we thank her for her expertise and support.
Normally, we would have her on her own panel, but because of
scheduling difficulties that pressed us on time in this
hearing, she has graciously agreed to join in a large panel to
expedite the process this morning. So we want to thank you
again for your consideration, Madam Register.
Next, we will hear from Gerald A. Heeger, President of the
University of Maryland University College. In addition to his
academic and administrative experience, Mr. Heeger has been
involved in developing distance education offerings for a
number of years.
While at New York University, he created NYU Online, and
has worked at the University of Maryland to broaden educational
opportunities across the State and throughout the world through
expanded online offerings. Then we will hear from Allan Adler,
the Vice President for Legal and Governmental Affairs for the
Association of American Publishers. Mr. Adler has long been
involved in copyright policy debates here in Washington, and we
certainly welcome your perspective here today.
Following Mr. Adler, we will be pleased to hear from
Richard M. Siddoway. Mr. Siddoway is the Principal of the
Electronic High School in Utah, which connects high school
students throughout Utah to educational opportunities that they
may not have had before. He has been a professional educator
for nearly 40 years and he is a New York Times bestselling
author with his book The Christmas Wish, so he brings insights
from various vantage points to this discussion. He has long
worked on public policy issues involving technology and
education, and we are certainly honored to have you here today,
Mr. Siddoway, to inform our process.
Next, we will hear from Paul LeBlanc, who is the President
of Marlboro College, in Marlboro, Vermont. Having founded an e-
commerce program and a teaching with Internet technologies
Master's Degree, Mr. LeBlanc has long sought to connect
education and new technology as a tool for improving
communication and knowledge-sharing in both the classroom and
board room. So we are very pleased to have you with us here
today.
Finally, we will hear from Gary Carpentier, who teaches in
the LL.M. program in international legal studies at the
Washington College of Law at American University, and is
creating an Internet-based law course on NAFTA together with
three other universities in Canada, three in Mexico, and two
other universities in the United States, to be transmitted to
students in each of those countries.
So we both look forward to hearing the statements of each
of our distinguished witnesses. We will turn first to you, Ms.
Peters.
STATEMENT OF MARYBETH PETERS, REGISTER OF COPYRIGHTS,
WASHINGTON, D.C.
Ms. Peters. Thank you. Mr. Chairman, Mr. Leahy, I am
pleased to be here today to testify on S. 487, the Technology
Education and Copyright Harmonization Act of 2001.
Mr. Chairman, I congratulate you and Senator Leahy for
introducing this important bill which will update sections
110(2) and 112 of the Copyright Act to cover certain
instructional activities taking place through the use of
digital technologies.
Digital distance education is a rapidly growing field, but
one that is still in its infancy. Part of our challenge in
making recommendations to you was to remove technologically
obsolete legal provisions which are an impediment to the policy
balance struck by Congress in 1976 without destroying a growing
and important market for copyright owners. Licensing of
copyrighted works in this market is extremely important.
However, fair use and other exemptions also play a role.
S. 487 incorporates our recommendations, modified in
certain instances to accommodate concerns expressed by
representatives of the affected communities. You, Senator
Hatch, in your floor statement invited suggestions to improve
the bill, and during the past 2 weeks we met with
representatives of the education and content communities to
hear some of their concerns. We have addressed a number of
these concerns in our testimony.
In my oral testimony, I will only focus on a few issues.
First, the TEACH Act removes the requirement of a physical
classroom by permitting transmissions to be made to students
officially enrolled in a course wherever they may be. However,
the bill retains the current limitation that the performance or
display be directly related and of material assistance to the
teaching content of the transmission.
Thus, the critical elements are that the performance or
display still must be carried out by a non-profit educational
institution. Two, it still must be part of the institution's
systematic instructional activity. And, three, with the
amendment, the transmission must be by or at the direction of
an instructor as an integral part of the class session. The
result is that you have expanded section 110(2) narrowly in
order to avoid changing the central character of that section.
As it currently stands, section 110 focuses on performances
and displays. It should not become an exemption that focuses on
the delivery of copies to substitute for the purchase by
students of materials that are being performed or displayed. So
let me emphasize the exemption is limited to what is called by
some mediated instruction. The intent is to ensure that the
performance or display is analogous to the type of performance
or display that would take place in a live classroom. This
means that the display of an entire textbook would not be
exempted.
Another important element is the safeguards imposed as
conditions on the applicability of the exemption. These include
permitting the retention of transient copies only to the extent
necessary to accomplish the transmission, requiring the
adoption by the educational institution of copyright policies,
the provision to faculty and to students and to affected staff
of informational materials to describe and promote compliance
with copyright laws, and, most important, the requirement to
use technological measures to reasonably protect both
unauthorized access and unauthorized dissemination of
copyrighted works.
With respect to who is eligible for this exemption, the
bill continues the limit to non-profit educational
institutions. Clearly, this comports with what is in the
current copyright law today in both sections 110(2) and 110(1).
However, during our study, we noted that there was much support
for either a different criterion or an additional one; for
example, accreditation of the institution. This issue deserves
further attention, given the nature of the Internet. The
exemption should apply only to bona fide systematic
instructional activities.
Perhaps the most controversial part of the legislation is
expanding the categories of works that may be performed. This
is a change in the policy balance that was truck in 1976. For
pedagogical reasons, we support the addition of dramatic works,
audio-visual works, and sound recordings. Clearly, these works
are primarily intended to be performed and inclusion of them
could affect their markets. Therefore, it is appropriate to
limit their use to limited and reasonable portions.
Thank you. I would be pleased to answer any questions you
have, and I look forward to working with you and members of
your staffs in any way that would be useful to you as you move
forward in this process.
Thank you.
[The prepared statement of Ms. Peters follows:]
Prepared Statement of Marybeth Peters, Register of Copyrights
The Copyright Office is pleased to present its views on S. 487, the
Technology, Education and Copyright Harmonization (``TEACH '') Act.
This important legislation updates sections 110(2) and 112 of the
Copyright Act to allow the same activities to take place using digital
delivery mechanisms that were permitted under the policy balance that
was struck by Congress when the law was enacted in 1976, while
introducing safeguards to minimize the additional risks to copyright
owners that are inherent in exploiting works in a digital format.
Background
Section 403 of the DMCA directed the Copyright Office to consult
with affected parties and, within six months of the date of enactment,
make recommendations to Congress on how to promote distance education
through digital technologies. The Office was specifically directed to
consider the following issues: the need for a new exemption, the
categories of works to be included in any exemption, appropriate
quantitative limitations on the portions of works that may be used
under any exemption, which parties should be eligible for any
exemption, which parties should be eligible recipients of distance
education material under any exemption, the extent to which use of
technological protection measures should be mandated as a condition of
eligibility for any exemption, the extent to which the availability of
licenses should be considered in assessing eligibility for any
exemption and other issues as appropriate.
At the conclusion of an intensive process of identifying
stakeholders, holding public hearings, soliciting comments, conducting
research, and consulting with experts in various fields, the Office
issued a Report on Copyright and Digital Distance Education in May,
1999 recommending changes to the existing exemption for distance
education, section 110(2). More recently, the Copyright Office has
consulted informally with representatives of the educator and content
communities to hear their respective concerns regarding the Office's
legislative recommendations.
In preparing our Report we found that digital distance education
was a field that was undergoing rapid--even explosive--growth, but one
that was still in its infancy. Technological change had made it
possible for educators to reach a vastly broader student population
with a richer variety of course materials than was ever possible before
the advent of the Internet. At the same time, the same technological
changes created a huge potential market for creators and publishers to
license their works for use in distance education.
Part of the challenge for this Office in formulating
recommendations addressing digital distance education was to remove
technologically obsolete legal provisions as an impediment to carrying
forward the distance education activities sanctioned by Congress in
1976 into the twenty-first century, without killing a nascent and
potentially important market for right holders. We concluded that this
could best be accomplished by using the policy line drawn by Congress
in 1976 as the point of reference for a technological updating of
section 110(2) that would take account of the nature and capabilities
of digital networks.
At the same time, the Copyright Office was mindful of the risks
that are inherent in the exploitation of copyrighted works in digital
form. We concluded that additional safeguards were necessary to
minimize the risk to right holders that legitimate use of works under
an expanded and updated distance education exemption could result in
copyright piracy.
S. 487 incorporates many of the recommendations that we made in our
1999 Report, modified in certain instances to accommodate concerns
expressed by representatives of the affected communities. The remainder
of this testimony focuses on how the bill would change current law in
implementing the recommendations from our Report. Where appropriate, we
indicate potential concerns with the language of the bill that may
require further consideration.
Existing Law
Three exemptions together largely define the scope of permitted
uses for instructional activities: 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 a transmission--i.e., an instructional television or
radio broadcast. Both subsections contain a number of limitations and
restrictions. In particular, the section 110(2) exemption from the
performance right (as distinguished from the exemption from the display
right) applies only to nondramatic literary and musical 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.
In addition, although the term ``transmission'' as used in section
110(2) is not limited to analog technology, and would therefore include
digital transmissions, the provision would only permit digital
transmissions to the extent that they do not implicate exclusive rights
other than the public performance and public display rights. Since the
reality of digital technology is that most digital transmissions entail
reproduction and distribution (as those terms are defined in the
copyright law and interpreted by the courts), the practical outcome is
that most digital transmissions are not exempted under section 110(2).
Analysis of the Bill
Section 2. Exemption of Certain Performances and Displays for
Educational Uses
SCOPE OF THE EXEMPTION
Section 2 of the bill amends the chapeau paragraph of 17 U.S.C.
110(2), altering the scope of the exemption by expanding both the
rights and the categories of works that are covered.
Unlike the analog transmissions contemplated in the current law,
digital transmissions implicate the reproduction and distribution
rights in addition to the public performance and public display rights.
The making of temporary reproductions is an integral part of the
technology of transmitting digital data from one point to another. It
is settled case law in the U.S. that such temporary reproductions
implicate the reproduction right. Similarly, courts have held that such
activity can be deemed a distribution as well. In order to address
these technological realities, the bill amends section 110(2) to cover
the rights to reproduce a work ``in transient copies or phonorecords
created as a part of the automatic technical process of a digital
transmission'' permitted under section 110(2), and to distribute ``such
copies or phonorecords'' in the course of a digital transmission
authorized by section 110(2), ``to the extent technologically necessary
to transmit the performance or display.''
The expansion of the 110(2) exemption to cover these two additional
rights is phrased very narrowly in order to avoid changing the central
character of section 110 from an ``exemption of certain performances
and displays'' to an exemption permitting the delivery of copies or
phonorecords that substitute for the purchase by the student of the
materials performed or displayed. As amended, section 110(2) would
permit reproduction and distribution only to the extent technologically
required in order to transmit the performance or display permitted by
the exemption.
In our informal consultations with the educator community, concern
was expressed that the exemptions from the reproduction and
distribution rights were too limited for an institution to be able to
carry out a permitted transmission without potential liability. As the
originator of the transmission, an institution could potentially be
liable for any reproduction that occurs along the transmission path
from the institution's server to the student's personal computer.
Although many of the copies would fall within the scope of the proposed
exemption, it is inevitable that some copies, such as cache copies in
an Internet service-provider's proxy cache or a user's browser cache,
would be made, but would not be considered ``transient,'' would not be
``technologically necessary to transmit the performance or display''
and would not, as required in proposed section 110(2)(D), be ``retained
for no longer than reasonably necessary to complete the transmission.''
Apart from initiating the transmission, the institution has no role in
the making and retention of such copies, and is powerless to prevent
them. The copies are simply a byproduct of how the technology works
today. But they do not fall within the scope of the exemption provided
in the bill, and they could result in potential liability for the
institution.
These concerns appear to be valid, and merit further consideration.
We would be pleased to continue to work with the Committee and the
affected parties to craft language to address these concerns.
Content owners have expressed concern about the existing exemption
from the public display right as applied to digital distance education.
Specifically, they are concerned that permitting the display of entire
literary works in the context of digital distance education has a much
greater impact on copyright holders than permitting the display of
entire works for purposes of instructional broadcasting. ``Display'' of
a book using the technology of distance education in 1976 meant showing
it--holding it up for the camera to see. Display of a book using
today's technology means making the entire work available digitally.
The technology of 1976 did not make it possible for the display of a
textbook to substitute for its purchase, but the technology of 2001
does.
The exemption from the copyright owner's exclusive right to display
the work publicly would permit both activities. The Copyright Act
defines ``display'' of a work as showing a copy of a work either
directly or by means of ``any other device or process.'' To display a
work ``publicly'' is to display ``to the public, by means of any device
or process, whether the members of the public capable of receiving the
performance or display receive it in the same place or in separate
places and at the same time or at different times.'' Holding a book up
to a camera or using an e-book through an online delivery system both
fall comfortably within these definitions.
Nevertheless, in the view of the content community, Congress, in
exempting entire works from the display right in 1976, did not intend
to permit uses that were more extensive than those that were possible
under the technology of the time. Congress certainly did not intend
that an exempted display of a textbook under section 110(2) be capable
of substituting for the purchase of that book, as today's technology
makes possible.
We believe that these observations of the content community are
essentially correct, but it is our view that their concerns are
addressed by the limitation of permitted displays in amended section
110(2)(A) to those made ``as an integral part of a class session.''
Even though ``class session'' arguably has less strictly defined
parameters in a digital network environment than it does in other
contexts, the Copyright Office does not view the concept as being
entirely devoid of meaning. For example, the display of an entire
textbook could not take place in the course of a class session and
would not be exempted conduct under the scope of an updated section
110(2). The technology of 1976 made it impossible for the display of a
textbook to substitute for its purchase. Although today's digital
technology would make it possible to display an entire book, the
limitation that was once inherent in the technology is carried forward
through the concept of a class session.
The other expansion of the scope of the exemption accomplished by
the bill is to allow performances of categories of copyrighted works
other than the nondramatic literary and musical works that already may
be performed under current law. This provision implements a
recommendation in our Report that recognized that educators preparing
course material do not differentiate in the selection of subject matter
based upon the categories of works in section 102 of the Copyright Act,
and that current technology permits educators to recreate through
distance education the same rich pedagogical experience enjoyed face-
to-face with students in a classroom setting. Section 110(1) of the Act
permits the use of any work in a face-to-face classroom setting.
However, as our Report also recognized, the potential impact on
secondary markets for the principal categories of works that are
affected by this expansion--audiovisual works, sound recordings, and
dramatic literary and musical works--could be substantial. Transmission
of entertainment products like motion pictures and sound recordings
could well substitute for students paying to enjoy them elsewhere. The
bill addresses this concern by limiting performance of the newly-added
categories of works to ``reasonable and limited portions.''
It should be noted that when the current 110(2) exemption was
enacted in 1976, there was no public performance right that covered
sound recordings (a limited public performance right for sound
recordings which covers only certain digital transmissions was enacted
in 1995). Consequently, there was no need to address the appropriate
treatment of sound recordings in the discussions leading to the
enactment of the current section 110(2) exemption. The Copyright
Office, however, regards sound recordings to be as vulnerable to the
risks of downstream digital distribution as audiovisual works, which
militates against permitting anything but ``reasonable and limited''
portions of those works to be used under the exemption.
Works that are produced primarily for instructional use may be
neither performed nor displayed under the exemption, because for such
works, unlike entertainment products or materials of a general
educational nature, an exemption would cut significantly into primary
markets, impairing incentives to create. Including such works within
the exemption would interfere with the efficient functioning of the
marketplace for licenses. As we stated in our Report, we believe that
under current conditions, works created primarily for instructional
uses will be licensed efficiently in the educational market.
As an additional safeguard, this provision requires that the
exempted performance or display be made from a copy both lawfully made
and lawfully acquired.
CRITERIA FOR ELIGIBILITY
Section 110(2) currently contains several criteria which must be
met for a performance or display to qualify for the exemption. These
criteria relate to the identity of the transmitting institution and the
nature of the activities of which the performance or display is a part;
the nature of the performance or display; and the identity and location
of the recipients of the transmission. Section 2 of the bill amends the
existing criteria to update them and make them relevant to distance
education as it is carried out on digital networks. The bill also adds
additional criteria as additional safeguards against digital piracy.
Except in fairly limited circumstances, transmissions under the
current provision must be made to students in a physical classroom. The
bill eliminates the requirement of a physical classroom by permitting
transmissions to be made to students officially enrolled in the course
and to government employees, regardless of their physical location. The
bill retains the current limitation in section 110(2)(B) that the
performance or display be ``directly related and of material assistance
to the teaching content of the transmission'' and, in lieu of limiting
transmissions to a physical classroom, adds two additional safeguards.
First, section 110(2)(A), as amended by the bill, emphasizes the
concept of mediated instruction by mandating that the exempted
performance or display be analogous to the type of performance or
display that would take place in a live classroom setting. The
performance or display must still be carried out by a government body
or nonprofit educational institution, and must still be a regular part
of the institution's systematic instructional activities. In addition,
the bill requires that the transmission be made ``by or at the
direction of an instructor as an integral part of a class session.'' In
sum, the work must be used as an integral part of a classroom
experience (albeit a virtual one), controlled by the instructor, rather
than as supplemental or background information to be experienced
independently.
Content owners have expressed to the Copyright Office their concern
that ``nonprofit educational institution'' may not be the appropriate
dividing line between institutions that may and may not use the
exemption, since institutions that are not bona fide educational
institutions may enjoy nonprofit status. They have proposed that the
word ``accredited'' be added as an additional qualification. The Office
views this as a valid concern. We are uncertain, however, whether lack
of accreditation is necessarily an appropriate basis for denying an
institution the benefit of the exemption, or, conversely, whether
accreditation is an appropriate basis for granting an institution the
benefit of the exemption. This is especially true given the lack of
uniform national standards for accreditation, and the resulting
geographic inequity of such a condition. However, the Committee should
consider whether another criterion, in addition to an institution's
nonprofit status, could be used to limit the benefit of the exemption
to bona fide educational institutions.
The second safeguard introduced in lieu of limiting transmissions
to a physical classroom is found in section 110(2)(C), as amended by
the bill. This provision adds the requirement that the transmission
must be made solely for, and, to the extent technologically feasible
the reception of the transmission must be limited to, two defined
classes of eligible recipients: students officially enrolled in the
course for which the transmission is made; and officers or employees of
governmental bodies as part of their official duties of employment.
When we prepared our Report there was widespread agreement, in the
testimony and comments submitted to the Office, that the exemption
should benefit only students officially enrolled in the particular
course for which the transmission is made. The bill requires, to the
extent technologically feasible, that technical measures be employed to
ensure this.
Section 2 of the bill also adds new safeguards to counteract the
new risks posed by the transmission of works to students in digital
form. A new paragraph (D) requires that transient copies permitted
under the exemption be retained no longer than reasonably necessary to
complete the transmission. As discussed above in reference to the
chapeau paragraph of section 110(2), concerns have been expressed to
the Office regarding the possible retention of copies that are created
automatically in the course of the transmission and are outside the
control of the transmitting institution ``for longer than reasonably
necessary to complete the transmission.'' Further consideration should
be given to this criterion to ensure that copies made and retained as
an automatic by-product of the transmission process do not render a
transmission ineligible for the exemption.
Paragraph (E)(i) requires that beneficiaries of the exemption
institute policies regarding copyright; provide information materials
to faculty, students, and relevant staff members that accurately
describe and promote compliance with copyright law; and provide notice
to students that materials may be subject to copyright protection.
These requirements would promote an environment of compliance with the
law, ensure that participants in the instructional process were aware
of their responsibilities in using copyrighted material, and prevent
unintentional and uninformed acts of infringement.
Paragraph (E)(ii) requires that the transmitting institution apply
measures ``that reasonably prevent unauthorized access to and
dissemination of the work,'' and that the institution ``not
intentionally interfere with technological measures used by the
copyright owner to protect the work.'' These requirements reflect the
central role that the use of technological measures plays in the
balance that has been struck in this bill.
A number of concerns have been expressed to the Copyright Office
regarding this provision. The educator community has pointed out that
requiring institutions to apply measures that reasonably prevent access
to a work essentially repeats the requirement that the transmission be
``made solely for, and to the extent technologically feasible, the
reception of such transmission [be] limited to'' the intended
recipients. This may be a valid concern that should be given further
consideration.
Content owners, for their part, have expressed concern about the
use of the word ``intentionally'' in the context of interfering with
technological measures used by the copyright owner. Subjective intent
is difficult to prove, and could render the requirement of
noninterference meaningless. This appears to be a valid concern that
merits further consideration. Specifically, the Committee may wish to
consider substituting an objective standard for the current subjective
one--e.g., ``does not engage in conduct that could reasonably be
foreseen to interfere with technological measures.''
It has also been suggested that language derived from 17 U.S.C.
512(i) be added to this paragraph (or as a new paragraph) to require
both noninterference with and accommodation of ``standard technical
measures'' in order to be eligible for the exemption. While the
requirement in the bill of noninterference with a copyright owner's
technological protection measures coupled with existing prohibitions on
circumvention of access control measures in 17 U.S.C. 1201 should
provide a substantial level of protection for right holders, it is
possible that the case could be made for inclusion of the stricter
obligation in section 512(i).
Section 3. Ephemeral Recordings
Section 3 of the bill amends 17 U.S.C. 112 by adding a new
subsection which permits an educator to upload copies of a copyrighted
work onto a server solely to facilitate transmissions permitted under
section 110(2). Limitations have been imposed upon the exemption
similar to those set out in other subsections of section 112. Paragraph
112(f)(1) specifies that any such copy be retained and used solely by
the entity that made it and that no further copies be reproduced from
it except the transient copies permitted under section 110(2).
Paragraph 112(f)(2) requires that the copy be used solely for
transmissions authorized under section 110(2). Paragraph 112(f)(3)
prohibits a body or institution from intentionally interfering with
technological protection measures used by the copyright owner to
protect the work.
The exemption only applies to ``a work that is in digital form.''
Consequently, it is not possible under the proposed subsection to scan
a literary work, or otherwise convert a work to digital form. Use of
works in digital form on the Internet bears well-documented risks for
right 13 holders. Some right holders may choose not to expose
themselves to that risk by refraining from ``going digital.'' This
exemption is not intended to force those right holders to ``go
digital'' against their will.
In our Report, we recommended that section 112 be amended to allow
a single ephemeral recording to carry out a transmission permitted
under section 110(2). However, the technology of digital streaming
requires that more than one ephemeral copy be maintained on a server.
Consequently, we support the bill's expansion of the ephemeral
recording exemption to include multiple copies. It is the view of the
Copyright Office that the safeguards built into the proposed
subsection, including the extremely limited purposes for which
ephemeral recordings may be used, provide adequate assurance that the
additional copies authorized by the subsection will not have any
measurable impact on content owners.
Section 4. Implementation by Copyright Office
Subsection (a) states that not later than two years after the date
of enactment of this Act, the Copyright Office shall conduct a study
and submit a report to Congress on the status of licensing by private
and public educational institutions of copyrighted works for digital
distance education programs, including live interactive distance
learning classes, faculty instruction recorded without students present
for later transmission, and asynchronous delivery of distance learning
over computer networks, and also on the use of copyrighted works in
such programs. We caution that much of this information is considered
proprietary and will be difficult to obtain. Although such a report
could be very valuable to the Committee to the extent that empirical
evidence can be obtained, this may not be possible in many instances.
Subsection (b) requires the Copyright Office, not later than two
years after the date of enactment, to convene a conference of
interested parties, including representatives of copyright owners,
nonprofit educational institutions and nonprofit libraries and archives
to develop guidelines for the use of copyrighted works for digital
distance education under the fair use doctrine and sections 110(1) and
(2). The conference would initiate a process that has as its goal the
promulgation by the Copyright Office of guidelines for the fair use of
copyrighted works in digital distance education.
The Copyright Office believes that fair-use guidelines for
particular areas of activity have proved useful in the past, and
digital distance education is an area where development of new
guidelines certainly would be appropriate. We support such a
Congressionally-mandated process to establish fair-use guidelines for
digital distance education. Since guidelines do not have the force of
law, their success in practice depends largely on the degree to which
interested parties endorse them. A strong message from the Congress to
the affected parties that guidelines are desirable, as evidenced by
subsection (b), could play a pivotal role in the eventual success of
such an effort.
The Copyright Office is concerned, however, about the inclusion of
sections 110(1) and (2) as subjects for the guidelines, as they are
specific exemptions with delineated parameters. The Office would
propose that these sections be removed from the scope of the conference
and addressed through informational materials of the type regularly
issued by the Copyright Office.
Conclusion
The Copyright Office supports this legislation to carry out the
recommendations made in its 1999 Report. We look forward to continuing
to work with the Committee in this important endeavor.
Chairman Hatch. Thank you very much.
Senator Leahy. Mr. Chairman, could I just ask unanimous
consent that a statement by Senator Kennedy be included in the
opening statements?
Chairman Hatch. Without objection, we will place that in
the appropriate place in the record.
[The prepared statement of Senator Kennedy follows:]
Prepared Statement of Hon. Edward M. Kennedy, a U.S. Senator from the
State of Massachusetts
I would like to thank Chairman Hatch for convening this hearing to
address the issue of digital distance learning. Both he and Senator
Leahy have demonstrated impressive leadership in this area and I am
confident that, as a result of these efforts, our copyright laws will
be clarified to permit the expanded use of digital technology in the
American education experience.
For over two decades, distance learning has been a critical
component of our nation's education policy. Technological advances
ensure that distance learning will become an even greater part of the
educational experience in the years ahead. It is essential that we
create clear guidelines for schools, libraries and other education
providers as the concept of the classroom and the profile of the
traditional student become broader.
Digital technology expands access to curriculum materials for
students in non-traditional educational settings and creates
opportunities for new interactive learning experiences. For older and
returning students as well as those whose work or home obligations
preclude them from attending classes in a traditional campus setting,
distance learning can open the doors to higher education. In the
earlier grades, distance learning improves opportunities for children
in remote areas or underfunded school systems, by allowing them to take
advantage of material that otherwise would be unavailable to them.
Digital formatting changes the delivery system for copyrighted
material and challenges us to develop appropriate safeguards to prevent
abuse. This legislation represents an excellent beginning for the
development of those safeguards.
The bill appropriately expands the educational exemption that
requires instruction to take place in a classroom setting. The scope of
material that may be used in a transmission is broadened to include new
categories of copyrighted material such as audiovisual works and sound
recordings. The use of transient copies is limited to ensure that they
are retained only for a reasonable amount of time. Additional
protections are established to limit the subsequent use of materials
that are distributed under the new exemption.
I commend Register of Copyrights Marybeth Peters for her diligence
and guidance in this matter. The Copyright Office report on digital
distance learning is a valuable blueprint to guide us in the effort to
affirm the fundamental principles of fair use in an educational context
at a time when evolving technology re-defines classrooms.
I look forward to receiving the expert testimony today. I am
especially pleased that, with these new guidelines, the extraordinary
capability of new technology will be more fully integrated into the
educational experiences of every student and that those experiences
will be enriched by the books, manuscripts, sound recordings and films
that comprise the American creative legacy.
I look forward to working with my colleagues on the Judiciary
Committee toward passage of this important legislation.
Chairman Hatch. Mr. Heeger?
STATEMENT OF GERALD A. HEEGER, PRESIDENT, UNIVERSITY OF
MARYLAND UNIVERSITY COLLEGE, COLLEGE PARK, MARYLAND
Mr. Heeger. Thank you, Mr. Chairman, Mr. Leahy. Thank you
for the opportunity to testify on S. 487. You have my written
testimony. I simply want to make several points of emphasis.
My institution, UMUC, as it is known, is probably known to
you as one of the largest providers of distance education in
the world. It has for 54 years provided distance education to
U.S. military forces overseas in classrooms with faculty
present around the world, and even today at 120 bases
worldwide. At the same time, it has one of the largest online
enrollments in the world, including military students, students
from all over the United States, and increasingly the world. We
have at UMUC 28 full degree programs online, and this year we
will register more than 70,000 enrollments online.
I mention our size to you because it merely means that we
are confronting many issues in this area first, but we will not
be the last. I am here to speak not only on behalf of my
institution, but also on behalf of the many associations listed
in my written testimony. All of these associations and the
institutions which participate in them strongly support S. 487
because it would move to bring copyright law into accord with
the educational realities of today, where digital distance
education portends dramatic change in educational access and
quality.
We have all recognized the critical importance of education
to America's future. We confront the need to compete globally,
the need to expand capacity of our educational institutions,
and the need to recognize that all citizens in all places need
access to education lifelong.
More than anything else, distance online education offers
new solutions to such challenges. There are myriad examples we
are all familiar with, but current copyright law imposes
significant barriers to digital distance education. The 1976
Copyright Act was not written with the Internet or online
education in mind. Its provisions governing distance education
present two basic problems for us today.
First, a limitation on the types of works that may be
utilized in remote transmission drives an untenable wedge
between content in the classroom and content in distance
education. That wedge threatens to undermine the very viability
of quality in online education.
Second, the current law does not fully accommodate some of
the technical aspects of delivery and instructional content
over computer networks. Again, the absence of such rules of the
road, as I would call them, jeopardizes the whole enterprise.
I could offer numerous examples. I will cite only two, one
from a major university renowned for its cinema program,
frustrated in its effort to create a dynamic new distance
education film course, despite being willing to commit more
than $600,000 to the production of the course, yet unable to
bring about a course that relied on short film clips that drew
on segments as short as 30 seconds. Some people never
responded. Others demanded a great deal of money. Others just
simply denied participation. In the end, the failure to secure
rights to film clips less than a minute long shut down what was
going to be an exciting educational program.
My university, the second example, the University of
Maryland University College, at the request of State
authorities, has worked hard to create an innovative teacher
education program. Teacher education requires an innovative use
of instructional materials. Again, such materials remain out of
reach in terms of distance education.
Let me just take this to the broadest level of policy. We
need to realize that to fully realize the potential of distance
education, we need to establish parity between the virtual
class and the physical class. Not to do so undermines academic
quality, makes sound management practices impossible and, most
importantly, potentially makes distance education students
second-class citizens by denying them access to the rich
materials essential for a quality education.
Thank you.
[The prepared statement of Mr. Heeger follows:]
Prepared Statement of Gerald A. Heeger, President, University of
Maryland University College
Distance Education Testimony
Mr. Chairman and Members of the Judiciary Committee, I am Gerald
Heeger, President of the University of Maryland University College. I
am pleased to have this opportunity to testify on S. 487, the
Technology, Education, and Copyright Harmonization Act of 2001. I am
testifying on behalf of the Association of American Universities, the
American Council on Education, the National Association of State
Universities and Land-Grant Colleges, and the Association of Research
Libraries. The colleges, universities, and libraries which are members
of these associations strongly support S. 487 because it would bring
copyright law into accord with the education realities of today,
enabling a fuller realization of the enormous potential of digital
distance education to expand teaching and learning in time, place, and
richness of content.
The University of Maryland University College, or UMUC, is one of
eleven degree-granting institutions within the University of Maryland
System. Founded in 1947, its programs focus on the adult learner and it
specializes in distance education. In the past few years, it has become
the leading online university in the country, with over 43,000 online
enrollments in the last academic year, and an estimated 70,000
enrollments this year. UMUC offers 14 undergraduate degrees and 14
graduate degrees, including the MBA, fully online. Last year, the
University was the first recipient of the E-Learning Award. It was
recognized recently by Forbes magazine for its excellence in Web-based
instruction. Additionally, its librarian received a commendation from
Maryland's Governor for creating the Maryland Digital Library, a
resource for colleges and universities in the state that provides
access to over 400 electronic books and nearly 3,000 electronic
journals.
Education is the means by which we develop our nation's human
resources. As we move into an international information age, where both
cooperation and competition will be carried out world-wide, the ability
of the United States to meet its domestic and international challenges
and responsibilities will be directly dependent on the quality and
capacity of its educational programs. That quality and capacity in turn
will be determined by the content of those programs and their reach
throughout our citizenry. For our nation to maintain its competitive
edge, it will need to extend education beyond children and young adults
to lifelong learning for working adults, and that education must reach
all students of all income levels, in cities and rural settings, in
schools and on campuses, in the workplace, at home, and at times
selected by students to meet their needs.
Digital distance education makes this possible, and we are
witnessing a steady growth in online education, both as distance
education in the traditional sense, where instructor and student are
separated in place and perhaps time, and in new hybrids of traditional,
residential classroom education combined with online components.
Increasingly, college students can register for courses online, submit
class assignments by email, and participate in discussions that connect
students in a classroom with students beyond the classroom, sometimes
beyond the nation's boarders. Similarly, K-12 students can learn about
the customs and cultures of other countries through real-time
audiovisualconversations with pen pals from those countries; they can
learn science in new ways by having scientific demonstrations and actual
experiments conducted at distant locations brought to them in real time
via the Internet. The National Science Foundation, the National Academy
of Sciences, and other scientific societies and educational
organizations are working hard to improve our nation's science and
mathematics education; other groups are developing new ways to bring
humanities and the arts to students and the broader public. Many of
these new educational efforts draw on advances in information
technology and digital networks.
Digital distance education also has special value to two groups
with which UMUC is very familiar. One is the servicemen and women in
the United States military, who benefit greatly from the ability to
obtain instruction in remote locations. Additionally, the University's
online course offerings are very attractive to disabled Americans. This
past fall, we had nearly 400 disabled students, including around 200
disabled veterans enrolled in courses at the University.
Such efforts have or will soon come up against barriers set by
current copyright law. In 1976, Congress wisely recognized the
pedagogical value of allowing teachers to enrich the classroom learning
of their students by permitting the performance or display of lawfully
made copyrighted material without having to get clearance from the
copyright owner. Thus, a teacher could show a movie or the performance
of a drama, or could display a painting as part of the course of
instruction. Recognizing the potential of distance education-which in
1976 was essentially remote instruction by television Congress also
authorized the display of any copyrighted material and the performance
of non-dramatic literary or musical works at remote classroom settings.
The 1976 law was not written with the Internet and online education
in mind, and its provisions governing distance education present two
basic problems today. First, the limitation on the types of works that
may be performed by remote transmission to non-dramatic literary and
musical works drives an increasingly untenable wedge between content in
the classroom and that at a remote location. Second, current law does
not fully accommodate some of the technical aspects of delivering
instructional content over computer networks.
Let me give just one example of how current law impedes the
development of digital distance education. At a major university, the
highly ranked cinema program recently tried to develop a distance
education film course. The institution was committed to invest $600,000
in the effort. Part of the course involved the use of film clips
ranging from 5 to 30 seconds. Negotiations for rights went on
interminably. Permissions had to be gotten from, and payments had to be
made to, copyright owners and actors. Some people never responded,
others demand a great deal of money, some simply said no. In the end,
after losing a substantial amount of money, the failure to secure the
rights to film clips less than a minute long shut down a promising
program.
This example illustrates two stark realities confronting digital
distance education. First, it is very expensive. The university above
was prepared to invest $600,000 in a single program; how many
institutions can contemplate such an investment? Elementary and
secondary schools, colleges and universities will have to find
substantial new resources to invest in the computers, networks, and
applications necessary to support digital educational activities, as
well as in faculty development, teacher training, and the development
of courseware and other course materials. Although digital distance
education may in the future produce genuine economies, in the short run
the start-up and delivery costs are very expensive, so that all
institutions are limited by cost in what they can do, and some
institutions are simply kept out of significant digital education
activities because of its steep costs.
The second reality confronted by digital distance education is
that, even if we find the resources to build the necessary
infrastructure, digital education will be threatened with second-class
status unless and until local and remote educational content are
brought into closer accord. The inescapable fact is that for digital
distance education to achieve its full potential, instructors must be
able to conduct remotely all educational activities permitted in a
physical classroom. Yet consider the university's effort to establish a
distance education film course. This ultimately abandoned effort
highlights four key points: (1) the copyright barriers are real, (2) no
aspect of the proposed program would have possibly threatened anyone's
market, (3) yet an opportunity to expand a first-class educational
program beyond its residential boundaries was lost, and (4) if
legislation such as that which we are considering today had been in
place, a new distance education film course would be reaching new
students.
Licensing is not the solution to copyright barriers. Licensing the
use of content is slow, costly, and does not permit the instructor
freedom in the selection of materials for transmission in the digital
classroom. Further, there is a misperception that an online course is
developed in advance, so getting permissions is reasonable and
possible. However, in reality, that is not the case. Faculty members
frequently supplement the ``core'' course materials ``on the fly'' and
need flexibility to do so. Requiring licenses will limit the freedom
for distance education faculty to use materials essential to the
learning process. Provided that there are proper safeguards, the online
environment should not be more restricted than the face-to-face
teaching environment.
It is these copyright barriers that the Copyright Office addressed
in its thoughtful 1999 report on distance education. The
recommendations of the Copyright Office for statutory changes to
current copyright law would go far toward accomplishing the objective
stated above of enabling remotely all educational activities permitted
locally, in a physical classroom. We strongly support the Copyright
Office report and its recommendations for statutory changes to the
current copyright law.
Our reading of S. 487 is that, in the main, it would effectively
implement the statutory changes recommended by the Copyright Office,
carefully balancing expansions of the distance education exemption with
prudent safeguards.
The following provisions of the bill are particularly important:
exempting digital transmissions from Section 106 rights to
the extent necessary to permit such transmissions in the ordinary
operation of the Internet,
eliminating the physical classroom requirement for remote
reception of educational material,
enabling the asynchronous use of material by permitting
material to be stored on a server for subsequent use by students,
expanding the categories of work exempted from the
performance right to include reasonable and limited portions of
audiovisual and dramatic literary and musical works, as well as sound
recordings of the musical works that already are within the scope of
the exemption.
We understand the difficulty of achieving full parity between local
and remote educational activities due to the risks of unauthorized
reproduction and redistribution of digital content. The Copyright
Office report addresses these concerns in a forthright and informed
analysis. In its translation of this analysis into legislative
provisions, S. 487 would enact a number of safeguards, including:
limiting transmission of material to students officially
enrolled in the class,
limiting the retention of temporary copies,
limiting the use of materials to circumstances that involve
mediated instruction in order to assure that materials are used
remotely as they would be in a classroom,
requiring the use of technological measures that
reasonably prevent downstream redistribution, and
limiting performances of audiovisual works, dramatic works
and sound recordings to reasonable and limited portions.
S. 487 translates the Copyright Office recommendations for
statutory modifications into a carefully bounded but extremely
important set of legislative provisions that will permit the fuller
development of digital distance education.
One major reservation we have with the legislation is its failure
to include reasonable and limited portions of instructional material
works in the expanded categories of works exempted from the performance
right. We understand the concern that such an exemption could threaten
the primary market for instructional material. However, excluding
instructional material from the performance exemption will impose a
serious constraint on the development of distance education.
Instructional material often will be essential to effectively
harmonizing the content of local and remote instruction. Moreover, the
exemption provided by the proposed bill would provide important
guideposts in license negotiations and would help ensure that all
educational markets, not merely the one for which a particular
licensing regime had been developed, will have access to the work.
One particularly cogent example from my university is teacher
education. We are newly engaged in the training of teachers online to
alleviate a significant teacher shortage in the State of Maryland.
Whether it's training new teachers who are changing careers or training
current teachers to educate their students in an online environment,
our effort to provide proper instruction online would suffer from the
inability to show instructional videos. Especially at a time when the
need for teachers nationally is so great, it would be advantageous to
have this bill allow the use of instructional materials in the training
of teachers.
We believe that the limitations contained in the bill will provide
substantial protection for the copyright owner. Accordingly, we urge
you to consider including instructional audiovisual materials within
the scope of the exemption.
We are developing several other suggestions for changes in the
legislation that would, we believe, make a valuable bill even better,
and we would appreciate the opportunity to forward such suggestions to
you in the near future once we have refined those suggestions.
We also would like to comment on Sec. 4 of the bill. This section
calls on the Copyright Office to issue a report on licensing of
copyrighted works in digital distance education programs and the use of
copyrighted works in such programs, and to convene a conference to
develop guidelines for use of copyrighted works in digital distance
education under the fair use doctrine and section 110(1) and (2) of the
copyright code. A report on licensing and use of copyrighted works in
distance education that stems from the same thorough, open and balanced
process that the Office used to produce its excellent report on
distance education would undoubtedly be useful for Congress and
external parties, and we support this proposal.
The legislation calls for the Office to convene a conference in
order to develop guidelines on the use of copyrighted works in distance
education, and for the Office, if it deems it appropriate, to submit
those guidelines to the Senate and House Committees on the Judiciary.
We are concerned with the presumption that appears to be inherent in
this process that the conference will develop guidelines. Efforts to
develop guidelines have proved difficult and controversial. The fair
use doctrine is inherently-and, in our judgment, wisely-imprecise,
calling for a judgment on four factors to determine if a use is fair.
Thus, we would prefer that, if S. 487 is to call on the Copyright
Office to convene a conference, the conference bring together
interested parties to discuss the use of copyrighted material in
distance education, and only if the Office and the conference
participants deem it feasible, would the conference develop guidelines.
We note that the section-by-section analysis of the bill describes
something closer to this preferred process: that the Office would
convene a conference ``on the subject of the use of copyrighted works
in education and, to the extent the Office deems appropriate, develop
guidelines . . . for submission to Congress . . .'' and urge that the
same approach be included in the text of the bill.
In closing, I would like to reiterate the importance for the future
of distance education of allowing the same educational content remotely
that occurs locally in a physical classroom. Anything short of that
will doom distance education to second-class status and cripple its
enormous potential to expand dramatically the educational capacity of
our nation and its ability to compete in the new world economy. As both
local and remote educational content increasingly involves new
multimedia material, the disparity in treatment under current law will
place a growing burden on digital distance education. Thus, enactment
of legislation such as S. 487 is imperative to the development of
distance education and its capacity to expand the boundaries of
teaching and learning in time, place, content, and category of student.
We commend you for this bill, and we look forward to working with
you to add refinements to it and enact it into law.
Thank you for this opportunity to testify on this important
legislative and educational initiative.
Chairman Hatch. Thank you, Mr. Heeger.
Mr. Adler?
STATEMENT OF ALLAN R. ADLER, VICE PRESIDENT FOR LEGAL AND
GOVERNMENTAL AFFAIRS, ASSOCIATION OF AMERICAN PUBLISHERS,
WASHINGTON, D.C.
Mr. Adler. Thank you, Mr. Chairman. We appreciate the
opportunity to appear here today to present the views of
America's book publishing industry.
Mr. Chairman, since both you and Senator Leahy, I know, had
distinguished careers as lawyers prior to coming to the Senate,
I think you will appreciate our approach in pleading in the
alternative with respect to this bill. So the first argument we
will make, knowing that you have already introduced the bill,
and hearing your enthusiasm for pursuing it, is nevertheless to
ask you to reconsider whether this is the appropriate time,
given the condition in the marketplace, for legislation to
change copyright law.
We have testified twice, in July 1999 before the House
Judiciary Subcommittee and again in July 2000 before the Web-
based Education Commission, explaining our views that the
record and landscape documented in the Register's report did
not justify a change in copyright law as proposed by the
Register.
We believe that the developments in the area of distance
education since then reaffirm our conclusions with regard to
that report. First, let me just briefly summarize the reasons
why we believe this is true.
Given the fact that the marketplace for distance education,
as documented in the Register's report, continues to grow at an
exponential rate and is extremely vibrant and bustling with
competition and innovation, we don't believe that the Copyright
Act is really holding back in any serious way the production of
high-quality digital content and the ability to have that
content available for use in distance education.
One has to ask, given the level of investment and
entrepreneurial activity in this area both by non-profit and
for-profit entities, including those in the education field,
how have they been able to be successful in growing this field
if the Copyright Act was indeed such an obstacle.
The reason is very simple. These people are able to create
their own digital content. They are able to digitize
preexisting public domain materials. They are able to make fair
use of preexisting third-party works, and they are able to
obtain licenses for using preexisting third-party works to
create multimedia and other kinds of works for use in online
distance education.
No doubt, there is anecdotal evidence of licensing
problems, and we are not here to defend those instances where
license requests have been made and the responses have been
either unreasonable or what some people in the user community
might even characterize as abusive. But those problems, too,
are being addressed, and I would point out to you that in our
written submission we give examples of the things that many
publishers are doing to go online with their permissions
process to make it more convenient for users who want to be
able to use materials to which they hold copyright.
Secondly, we believe that the proposed legislation is
unjustifiable, again, because of the level of activity in the
marketplace. It is quite clear that distance education is
growing by leaps and bounds. And again, if that were something
that would be held back by the restrictions of copyright, I
think we would have seen more manifestations of that than have
been documented in the Register's report.
Third, the proposed legislation unworkable. It is
unworkable basically for two reasons. One is because the
Register recognizes that in order to maintain a proper balance
between the concerns of copyright owners and the user
community, it is important that any exemption be based upon the
application of technological safeguards to ensure that after
legitimate access to work through distance education programs
occurs, there is no unauthorized further reproduction or
distribution or other use of those materials.
The Register's report documented in May 1999 that such
sophisticated technologies may become widely available in the
near future, but they are not there yet in a convenient and
affordable manner that can protect all varieties of works and
market uncertainties remain. That situation is still true
today.
I would also point out to you that in the interim period
since the report, we have seen other reasons to be somewhat
dubious about the ability to ensure that proper treatment of
copyright owners' concerns will be afforded if such an
exemption is enacted into law.
For example, in the situation of the Napster phenomenon
which two Federal courts enjoined as fostering ongoing
instances of blatant copyright infringement on an unprecedented
mass scale, it should be noted that this phenomenon was chiefly
pursued by students using campus-based Internet access and
computer networks.
We also are concerned about the aversion and distrust
directed toward legal prohibitions enacted in the DMCA by the
education community, as evidenced in their testimony at
hearings conducted last year by the U.S. Copyright Office on
the circumvention issue.
Finally, we are concerned that recent rulings by the U.S.
Supreme Court and other Federal courts of appeals which have
barred lawsuits for damages against State entities for
violations of Federal statutory rights may have eliminated the
primary incentive for public educational institutions to comply
with legal standards that protect the rights of copyright
owners.
Our other concern in this area is the fact that the
exemption maintains the 25-year-old application specifically to
non-profit educational institutions, despite the fact that the
Register documented 2 years ago, and the market has continued
to proceed in a way that completely blurs and obliterates the
distinction between the involvement of non-profit and for-
profit entities.
Again, as I said at the outset, we are pleading in the
alternative. Our other argument would be that if you believe
that it is still, despite these reasons, justified to go
forward with legislation, we have set forward a number of
concerns in our testimony that we hope will allow you to revise
this legislation in a way that will properly balance the
concerns of copyright owners and the user community so that the
clever acronym that you have come up with for this legislation,
TEACH, does not devolve into something that really would stand
more for the Technology, Education and Copyright Heist Act, in
the way it would be performed in application.
We have divided those comments into areas that would affect
the scope of the legislation, particularly the scope of the
exemption, who is eligible for applying the exemption, and the
safeguards that are involved in them. We would be happy to
answer any questions both today and in writing with respect to
those particular suggestions.
[The prepared statement of Mr. Adler follows:]
Prepared Statement of Allan R. Adler, Vice President for Legal and
Governmental Affairs, Association of American Publishers
Mr. Chairman and Members of the Committee:
Thank you for inviting me to appear here today on behalf of the
Association of American Publishers (``AAP'') to discuss S. 487, the
proposed ``Technology, Education And Copyright Harmonization Act of
2001'' (or the ``TEACH Act'').
As the principal national trade association of the U.S. book
publishing industry, AAP represents some 300 member companies and
organizations that include most of the major commercial book publishers
in the United States, as well as many small and non-profit publishers,
university presses and scholarly societies.
AAP members publish hardcover and paperback books in every field of
human interest. Among these members are the nation's leading trade
publishers, who produce a wide array of fictional and non-fictional
literary works that include the ``best sellers'' enjoyed by millions of
readers of all ages and backgrounds. Also among them are the nation's
leading educational publishers, who produce textbooks and other
instructional and testing materials covering the entire range of
elementary, secondary, postsecondary and professional educational
needs.
While continuing to serve market demands for paper-based books and
journals, many AAP members now operate Internet websites and produce
computer programs, databases, multimedia products, and other electronic
software for use online and in other digital formats. Many are also
making substantial investments in the nascent ``e-book'' market, where
the reader's use and enjoyment of all kinds of literary works may be
greatly enhanced through the added functionality that books in digital
formats can offer when read on computer screens or through hand-held
personal digital appliances.
Many AAP members are vigorously responding to the popular embrace
of the Internet as an exciting new commercial and educational medium.
They understand the medium's unprecedented capabilities for flawless
and instantaneous reproduction, distribution, performance and display
of text, images and sounds on a global basis. Like other media
industries, book publishers are rethinking and revising their business
models to adjust to the opportunities and risks created by these
capabilities in a marketplace of increasing competition and evolving
consumer preferences. Confidence in their ability to exploit and
enforce copyright interests in the digital online environment is a key
factor in shaping these new business models.
Original AAP Objections to the Register's Recommendation: Still Valid
Today
The proposed legislation before the Committee today is based on the
legislative recommendations contained in the Register of Copyright's
May 1999 ``Report on Copyright and Digital Distance Education.'' That
report critically evaluated the educational community's assertions that
``outdated'' provisions of copyright law, as well as extant copyright
licensing practices and the deployment of technological protection
measures by copyright owners, would hold back the development of
Internet-based ``distance education'' unless Congress took action to
mitigate their impact.
In July 1999 before the House Judiciary Subcommittee on Courts and
Intellectual Property, and again in July 2000 before the
Congressionally-mandated Web-Based Education Commission, AAP reviewed
the state of Internet-based ``distance education'' as documented in the
Register's Report and concluded that the Register's recommendations to
amend current copyright law were (1) unnecessary to ensure the
availability of diverse, high-quality online educational programs; (2)
unjustifiable in the face of the bustling marketplace for the
production of digital content; (3) unworkable insofar as they were
contingent upon the deployment of technological safeguards not yet
widely-available in the marketplace; and (4) unfair insofar as they
ignored the exploding competition, collaboration and consolidation
among for-profit and not-for-profit providers of online education
programs.
Moreover, since no one has been advocating that Congress should
enact legislation eliminating the need to pay for computers, software,
Internet access, faculty salaries, costs of administrative personnel,
and tuition in connection with online education programs, the AAP
questioned why the costs of course content and, therefore, the
copyright owners who create and produce them--should stand alone among
the necessary elements of online educational programs as exempt from
payment of fair market prices for the value they provide in the
competitive ``distance education'' marketplace.
Today, faced with Congressional consideration of proposed
legislation embodying the Register's legislative recommendations, AAP
maintains that the objections it raised and the question it asked in
response to previous consideration of the Register's recommendations
remain valid.
The proposed legislation is unnecessary--Although the ``distance
education'' provision in Section 110(2) of the Copyright Act was
written for instructional broadcast television, and does not really
apply to Internet-based online education, current copyright law
nevertheless provides adequate bases for the creation and acquisition
of online digital content. In fact, the admittedly limited scope of the
existing statutory exemption for ``distance education'' has been
largely irrelevant to the growth of the marketplace because, in most
instances (as documented in the Register's Report), providers of online
educational programs are able to:
create their own digital content;
digitize preexisting ``public domain'' materials;
make ``fair use'' of preexisting third-party works; or,
obtain licenses to use preexisting third-party works.
While the Register's Report noted anecdotal evidence of licensing
problems ``primarily involving difficulty in locating owners, inability
to obtain a timely response, and unacceptable terms,'' it rejected any
need for a legislative solution; concluded that many of these problems
``should diminish with time and experience;'' and recommended ``giving
the market for licensing of nonexempt uses leeway to evolve and
mature.'' (p.164-167).
Although some licensing problems are still encountered in today's
marketplace, substantial progress toward making the licensing process
more convenient and comprehensible for both parties has occurred since
the Register's Report was issued. Recent actions reported by AAP
members bear out the Register's prediction that such problems will
continue to be addressed as the marketplace evolves and matures. For
example:
Houghton Mifflin's College Division has upgraded its
Permissions Department's website so customers can submit permission
requests by using online ``fill-in-the-blank'' forms or downloading PDF
templates to fill out and submit by fax. At the same time, the College
Division is conducting a pilot program with Copyright Direct, a
permissions tool of Yankee Rights Management that permits users to
obtain real-time permissions online. The College Division is also
working with Reciprocal, a ``secure system'' provider for granting and
holding permissions, which also provides ``secure containers'' that
permit rights and permissions information to be carried online with the
content to which its relates.
Pearson Education's Prentice Hall subsidiary has
established a ``Companion Website Gallery'' which provides descriptions
and links for an array of textbook-supporting websites that correlate
additional learning activities with specific college textbooks. In
addition, like several other AAP members, it has contracted with
NetLibrary, an online provider of e-books, to make some of its college
texts available for online access with full-text search capabilities.
Computer Curriculum Corporation, a separate division of Pearson
Education, also offers CCC Destinations Internet, a comprehensive
online learning program that permits remote delivery of customized,
essential skills education for adolescent and adult learners in
community colleges, correctional education programs, and public housing
education programs.
Elsevier Science has established ScienceDirect, an online
current awareness service with a ``click-through'' license that allows
institutional subscribers to their print journals to have free remote
online access to the most recent twelve months of journal issues on a
rolling basis. If the subscriber allows all or selected members of the
public to access its collections, the license allows such persons to
access the journals online from workstations in the institutional
facility.
Thomson Learning's Global Rights Group has established a
website for online evaluation and disposition of permission requests
for all Thomson Learning Higher Education and Lifelong Learning
companies. The website cannot be used to order and purchase materials,
but provides for the use of online permission request forms and a
``Lookup'' status check button for all materials produced by Thomson
Learning's ten higher education companies.
Harcourt College Publishers, one of Harcourt General's
higher education companies, has established an Online Learning Center
that utilizes the WebCT platform to deliver courses customized by
instructors to accompany many of its main textbooks. Its Custom
Publishing operation allows instructors to request modifications to the
company's own products, including removal of excess chapters, addition
of instructor materials, institutional personalization, and the
combination of several products into one. Archipelago Productions,
another Harcourt higher education company, which develops multimedia
courseware for distance and distributed learning, has announced
alliances with WebCT and Blackboard, Inc., both well-known providers of
online education platforms, to deliver Archipelago's Online Courses in
a hybrid ``netCD'' environment that leverages CD-ROM and Internet
technologies to feature the presentation benefits of CD-ROMs and the
interactivity of Web browsers embedded into the disks.
Wiley InterScience is an online journals service through
which John Wiley & Sons, a leading scientific publisher, allows all
users to browse and search Tables of Contents of all of its journals
online, and obtain online access to abstracts for all of its titles.
Depending on the type of subscriber, the service can also offer online
access to the full text of all subscribed journals.
The proposed legislation is unjustifiable--Proof that current
copyright law has not produced what the Register would have called a
``dysfunctional market'' for the provision of online educational
content was affirmed by the Register's own characterizations of that
marketplace, including the following:
Distance education in the U.S. is ``a vibrant and burgeoning
field'' which the advent of digital and other new technologies for
delivery has made ``the focus of great creativity and investment.''
(p.1)
``[T]he expanded audiences for these programs represent a
potentially lucrative market, which the varied participants in the
process, including both corporations and educational institutions, are
seeking to tap.'' (Id.)
``[D]igital technologies have fostered a rapid expansion in recent
years, as well as a change in profile [in which] many more distance
education courses are being offered than ever before, and the number is
growing exponentially.'' (p.9)
``Today's distance education courses use digital technology
extensively for varied purposes and in varied ways. The addition of
digital technologies to the distance education palette has produced new
models of learning, resulting in a richer and more interactive class
environment.'' (p.13)
The continuing vigor of the Internet-based ``distance education''
marketplace was reaffirmed more than a year after the issuance of the
Register's Report when the Web-Based Education Commission, in December
of last year, reported that many private-sector providers are now
shifting from producing content to aggregating instructional
information and acting as ``portals'' for other content-based
resources. Paradoxically, it also noted that, unless state and local
educational agencies ``create significant demand for innovative online
learning materials, it may not be economically feasible for many online
education content providers to stay in business.'' (The Commission,
which received testimony from the Register of Copyrights and other
proponents of ``updating'' the copyright laws to facilitate Internet-
based education, noted the anecdotal record of asserted problems, but
did not urge legislative action to amend the copyright laws.)
The proposed legislation is unworkable--While the Register
recognized that an ``updated'' exemption must be conditioned on the
application of effective technological safeguards in order to ensure
that the balance of interests between copyright owners and users of
works would be ``comparable'' to what Congress had carefully crafted
into the existing exemption, this key element of the Register's
recommendation was effectively undercut by the Register's observation
that:
``Sophisticated technologies capable of protecting content against
unauthorized post-access use are just now in development or coming to
market, and may become widely available in the near future. But they
are not there yet in a convenient and affordable form that can protect
all varieties of works, and market uncertainties remain.'' (p.141)
This situation has not substantially changed since the Register's
Report was issued in May 1999. At present, no one really knows the
costs or other burdens involved in implementing the technological
measures requirement in the proposed legislation. But, even if the
necessary technological safeguards were widelyavailable in ``a
convenient and affordable form'' in today's market, copyright owners
have, in the period since the issuance of the Register's Report,
acquired some legitimate reasons to entertain doubts about the
willingness of many ``non-profit educational institutions'' to take on
the full costs and responsibility of good-faith compliance in their
implementation. Some of these reasons are based on the extent to which
the Napster phenomenon, which two federal courts have enjoined as
fostering ongoing instances of blatant copyright infringement on an
unprecedented mass scale, has been chiefly pursued by students using
campusbased Internet access and computer networks. Others may be based
on the evident aversion and distrust directed toward legal prohibitions
against circumventing such technological safeguards by representatives
of the higher education community in hearings conducted last year by
the U.S. Copyright Office. Still others may be based on the fear that
recent rulings by the U.S. Supreme Court, which have barred lawsuits
for damages against State entities for violations of federal statutory
rights, have eliminated the primary incentive for public educational
institutions to comply with legal standards that protect the rights of
copyright owners.
The proposed legislation is unfair--The Register's proposed
retention of the existing exemption's application to ``nonprofit
educational institutions'' cannot be squared with the realities of the
online education marketplace where, based on the following unequivocal
finding by the Register, it would create unfair and unjustifiable
inequities among providers of distance education programs:
``While mainstream education in 1976 was the province of nonprofit
institutions, today the lines have blurred. Profit-making institutions
are offering distance education; nonprofits are seeking to make a
profit from their distance education programs; commercial entities are
forming partnerships with nonprofits; and nonprofits and commercial
ventures are increasingly offering competitive products.'' (p.152-153)
In order to appreciate the continuing validity of this finding,
consider the explosion of entrepreneurial activity involving the higher
education community's own efforts to create and market online education
courses. For example, the following developments occurred after the
issuance of the Register's Report, as reported in weekly editions of
the Chronicle of Higher Education last year:
A for-profit company, Final-Exam.com, announced plans to
sell Webbased study guides for survey-level college courses, using
textbook authors and other scholars to edit and market them with the
option of customization by professors from their own syllabi. (January
14, 2000)
Following the examples of New York University, Columbia
University and the University of Maryland University College, Cornell
University announced creation of a for-profit subsidiary, ``eCornell,''
to market its online courses and materials online. (March 24, 2000)
Together with five other leading educational and culture
institutions, Columbia University announced the creation of a for-
profit subsidiary, ``Fathom,'' to operate a website for marketing their
respective ``authenticated'' original scholarly resources online.
(April 14, 2000)
Following the lead of Stanford University's NextEd portal,
Class.com, a for-profit subsidiary of the University of Nebraska at
Lincoln, will be selling its online course content for high-school
programs internationally, with eventual conversion of the content ``to
account for cultural differences.'' (May 5, 2000).
Rupert Murdoch's News Corporation has entered a joint
venture with Universitas 21, a network of 18 universities, to market
custom-designed academic programs online to working college students.
(June 2, 2000)
Cognitive Arts, a for-profit entity, is working with
Harvard Business School Publishing, a nonprofit subsidiary of the
business school, to market online courses to entering students and to
other business schools and corporations. (June 9, 2000)
For all of these reasons, AAP concludes that, regardless of the
good intentions underlying the Register's legislative recommendations,
they were clearly at odds with the accompanying findings and
observations based on the evidentiary record compiled by the Register.
And, on the specific points discussed above, developments in the
marketplace since the Register's Report was submitted to Congress in
May 1999 continue to undercut the recommendations, inasmuch as the
requisite post-access technological protection measures are still not
yet generally available for deployment in a convenient and affordable
manner, and the ``for-profit'' v. ``non-profit'' distinctions among
providers have--for all practical purposes--been all but obliterated in
the marketplace.
Issues Regarding Specific Provisions in the Proposed Legislation
However, in the event that this Committee rejects the arguments
presented by AAP and decides to seek enactment of legislation embodying
the Register's proposed amendments to the Copyright Act, AAP would urge
Congress to revise S.487 so that, in practical application, the helpful
``TEACH Act'' acronym does not come to represent the ``Technology,
Education And Copyright Heist Act.''
To this end, we request that the following considerations should be
clarified or otherwise explicitly embodied in the legislation:
1. The complete exclusion of works ``produced primarily for
instructional use'' (p.2, lines 7-8) from the scope of Section 110(2),
as it would be amended, is absolutely essential to ensure, as the
Register's Report noted, that the exemption does not ``significantly
cut into primary markets [of educational publishers], impairing
incentives to create.'' The exemption should not cover such works, and
this exclusion should not be limited, conditioned or qualified in any
way.
2. The exemption, as it would be amended, should be applicable only
to an accredited ``nonprofit educational institution'' pursuant to
established standards for accreditation in the relevant educational
field. In keeping with the Register's emphasis on tying the exemption
to the concept of ``mediated instruction'' (i.e., described in the
Register's Report as ``the type of performance or display that would
take place in a live classroom setting... a use of the work as an
integral part of the class experience, controlled by the instructor,
rather than as supplemental or background information to be experienced
independently ''), the exemption should not apply to libraries,
archives, scholarly societies, or ``think tanks'' because the
activities of these entities generally do not constitute ``mediated
instruction.''
3. The ``display of a work'' (p.2, line 16) should be qualified, as
is the performance of ``any other work'' (p.2, line 15), by the phrase
``reasonable and limited portions'' (or, better still, ``reasonably
limited portions '') so that it is clear the exemption does not permit
such works to be displayed online in their entiret . In a recent
submission to the U.S. Court of Appeals for the Second Circuit in its
consideration of New York Times v. Tasini, the Register of Copyright
explained that, even in the preInternet world of 1976, Congress
anticipated that the newly-established ``display'' right could displace
traditional means of reproduction and delivery of copies in the context
of information networks, and understood that the ``display'' of a work
online ``could eventually provide libraries and individuals throughout
the world with access to a single copy of a work by transmission of
electronic images.'' Although this realization had little significance
in 1976, when Congress was creating an ``instructional broadcast
television'' exemption from the display right, the expansion of that
exemption to cover that right in the context of interactive digital
networks could have extraordinary repercussions for the display of
works which are--not excluded from the exemption as works ``produced
primarily for instructional use.'' For example, trade books in
electronic formats would be vulnerable to the broadest claims of
exemption, so that online courses in contemporary fiction or classic
20t'' century literature could allow readers to consume entire ``best
sellers'' or a publisher's most valuable backlist properties in the
guise of ``distance education''--cutting directly into the primary
markets for ``e-books.'' Congress must recognize the new implications
of ``displaying'' a textual work or database online, and limit them
accordingly, consistent with the limited purpose in amending the
exemption. In essence, this would permit a ``fair use'' display of the
work online, consistent with the reasonable expectations of both the
copyright and user communities. The failure of Congress to recognize
the importance of this issue could have dire consequences for the
nascent ``ebook'' market and for such diverse new related services as
those provided by netLibrary (www.netlibrary.com), Ebrary
(www.ebrary.com), Questia Media (www.guestia.com/guestia.html) and
others. If, as in the case of a photograph, painting or even a short
poem, Congress believes it is appropriate and not a danger to the
copyright owner's rights to permit the online display of the entire
work, these considerations should be explicitly delineated in the
exemption (e.g., perhaps through reference to codified terms such as
``graphic, pictorial or sculptural works''). (See further discussion
below regarding the ``class session'' language on p.3, line 2).
4. The statutory language should make clear that the exemption, as
it would be amended, applies only to copies of a work that are already
in digital form, and does not authorize the digitization, for example,
of a print book through scanning (which would involve the exercise of
the ``adaptation'' right). We understand this is the Register's
intention as embodied in the explicit, limited authority under Section
112 of the Copyright Act, as it would be amended, to make copies
``embodying the performance or display to be used for the purpose of
making transmissions authorized under Section 110(2).'' However, the
lack of authorization to digitize should be made explicit in the
statutory language.
5. In addition to the requirements that the ``transient copies''
authorized under Section 110(2), as it would be amended, must be
``created as part of the automatic technical process of a digital
transmission'' (p.2, lines 18-19) and ``retained for no longer than
reasonably necessary to complete the transmission'' (p.3, lines 15-17),
the exemption should explicitly require that such copies must be non-
accessible and secure against interception or reproduction. This will
make the treatment of ``transient copies'' under this section more
consistent with the treatment of such copies under Section 512 of the
Copyright Act.
6. It is our understanding that, consistent with the previous
discussion of the ``mediated instruction'' concept in point 2 above,
the language on p.3, line 2 referring to ``an integral part of a class
session'' is intended to ensure that the online display of a work
pursuant to the exemption, as it would be revised, is limited to
reasonable portions of such work as would be used in a typical, off-
line live class setting, rather than the entire work. This should be
clarified by amending the cited phrase to refer to something like ``an
integral part of a class session, and in no larger portion than might
reasonably be expected to be used in a single such session. . .'' Once
again, the point is to generally bar the online display of a work in
its entirety.
7. With respect to the requirements in paragraph (E) concerning the
``policies regarding copyright'' which must be instituted by the
transmitting body or institution, a requirement should be added for
adoption of a policy and procedure regarding termination of those who
abuse this exemption to engage in repeated copyright infringements, and
to require that those who rely on this exemption must affirmatively
respond to ``standard technical measures'' of the kind used to protect
copyright and referred to in Section 512(i) of the Copyright Act.
Congress should also compare the requirement to ``provide informational
materials to faculty, students, and relevant staff members that
accurately describe, and promote compliance with, the laws of the
United States relating to copyright'' to a similar requirement for
universities seeking to limit their liability for copyright
infringement under Section 512(e)(1)(C) of the Copyright Act, and
assess compliance with the latter requirement.
8. With respect to the requirement to apply ``technological
measures'' on p.4, line 5, the legislation should clarify what is
intended by the phrase ``reasonably prevent'' and should provide some
objective criteria for evaluating compliance. In addition to
``unauthorized access to and dissemination of the work,'' the provision
should require that such measures must also ``reasonably prevent''
unauthorized downloading, printing or otherwise copying of the work as
well. In its current form, the proposed legislation provides no
mechanism or standard for enforcing the requirements relating to
technological measures, or any other requirements of the exemption, as
it would be amended. The requirements are meaningless without a
meaningful capability to enforce them.
9. The requirement at p.4, lines 8-10, to ensure that the
transmitting body or institution ``does not intentionally interfere
with technological measures used by the copyright owner to protect the
work'' sets an impossibly high evidentiary standard for proving
violations. The word ``intentionally'' should be deleted from the cited
phrase to establish an affirmative obligation to not interfere; if this
is unacceptable to Congress, then, at a minimum, the requirement should
be amended to require that the body or entity ``do nothing that
reasonably could be expected to interfere'' with such measures. This
would at least provide an objective standard by which to assess
compliance.
10. In addition to the requirements already in the proposed
legislation, State entities that assert the exemption, as it would be
amended, should be considered with respect to such transmissions to
have waived their Eleventh Amendment sovereign immunity for purposes of
any related copyright infringement lawsuit concerning the transmitted
performance or display of a copyrighted work. Without such a
requirement, such entities may feel little obligation to comply with
the ``technological measures'' or other limiting requirements of the
exemption, given their current immunity from damage suits for copyright
infringement under recent Supreme Court rulings.
11. With respect to the U.S. Copyright Office's implementation of
requirements for a report and conference under Section 4 of the
proposed legislation, it would be appropriate to add such matters as
the treatment of technological measures in digital distance education
programs and other matters of concern to copyright owners with respect
to such programs, so that implementation is based on a balanced
examination of the concerns of owners and users of copyrighted works in
digital formats.
CONCLUSION
As documented in the Register's Report and through subsequent
developments during the past year, the marketplace for producing high-
quality content for Internet-based higher education programs is a
diverse, dynamic and expanding world of evolving experimentation,
collaboration and innovation. Rapid technological change is producing
revolutionary rethinking of business and academic models, related
institutions, and the whole educational enterprise.
While providers may occasionally have problems with copyright and
related licensing issues, these instances are the by-product of
marketplace ``growing pains,'' rather than the result of inadequate
copyright law, and have in no way denied Internet providers of higher
education the opportunity to produce exciting new educational
experiences for a broad range of students through digital technologies.
If Congress is looking for ways to ensure the availability of high-
quality digital content for Internet-based ``distance education,'' AAP
believes that it should express its largesse through the provision of
funding, tax credits and other financial means of support to various
public and private entities for the production and acquisition online
educational content. Otherwise, there is ample time and reason to let
the flexibility of the marketplace, with the inherent checks and
balances of competition, work out continuing copyright and content
quality issues without the intrusion of government mandates. As long as
legal copyright protections are adequate to meet the needs of such new
applications, AAP believes that policy-makers can look to the
marketplace to solve most other problems.
If, however, Congress determines to go forward with legislation
based on the Register of Copyright's recommendations regarding the
revision of Sections 110(2) and 112 of the Copyright Act, AAP urges
Congress to make the clarifications discussed above and to call upon
the AAP for assistance in ensuring that the resulting legislation
properly balances the interests of owners of copyrighted works with
those of the users of such works.
Chairman Hatch. Thank you so much.
Mr. Siddoway, we will turn to you.
STATEMENT OF RICHARD M. SIDDOWAY, PRINCIPAL, UTAH ELECTRONIC
HIGH SCHOOL, SALT LAKE CITY, UTAH
Mr. Siddoway. Thank you, Senator Hatch, Senator Leahy.
Utah's Electronic High School began as a brain child of
Governor Michael Leavitt about 8 years ago, and during the last
6 years we have brought it into partial fruition. We serve four
major groups of students: those who have failed a class and
want to make up credit, those who wish to take classes they are
unable to take at their local high schools, those who wish to
take extra credit and graduate early, and those who are home-
schooling.
We deliver in three basic ways: broadcast television to PBS
channels that public education owns time on; on a two-way voice
video data system called EDNET--there are about 200 EDNET
studios at 165 locations across the State; all of the public
universities, colleges, applied technology centers, and most
high schools have them--and then on the Internet. The classes
that are delivered on both broadcast television and the EDNET
system are synchronous in nature with definite beginning and
ending dates. The Internet courses are not for the most part.
It has grown significantly in the 6 years.
In concert with that--and I have more of that in the
written testimony, but in concert with that we have also begun
delivering college and university courses across the State, and
that has grown, as Mr. Adler suggested, fairly exponentially in
the last few years. Last year, some 8,000-plus students across
the State had their courses delivered to them through distance
learning.
Now, we are in perfect congruence with what Ms. Peters said
concerning the regulations that should be in place. We believe,
just as we have in face-to-face instruction, we should have any
of this material an integral part of the curriculum. The only
thing we would like to do is to be able to distribute it in a
distant learning situation.
All of our classes are controlled to access. There are
password controls on the Internet. Obviously, in an EDNET
situation you have to be in a place where there is an EDNET
studio. Even the broadcast television courses--in order to
obtain credit, you have to have registered through a university
and through a high school, most of them being concurrent
enrollment.
So we encourage the adoption of the TEACH Act. It would
free us to enhance the courses that we are offering across the
State of Utah. In 11 months, Utah will welcome the world with
the 2002 Olympics. With the Electronic High School, we have
begun welcoming the world already. Our most distant student is
in Ulan Bator, Mongolia.
We appreciate the work that you are doing.
[The prepared statement of Mr. Siddoway follows:]
Prepared Statement of Richard M. Siddoway, Principal of Utah's
Electronic High School
Utah has a unique demography. Of the two and one quarter million
residents, nearly 85% reside in an area called the "Wasatch Front,"
which is a narrow strip of land between the west slope of the Wasatch
Mountains and the shores of the Great Salt Lake and Utah Lake. Salt
Lake City, Ogden, Provo, and the cities and towns between comprise this
area of the state. Conversely, the other fifteen percent of the state's
population are distributed over 90% of the state's area. The original
mission of distance learning in Utah was to serve that widely dispersed
rural population.
With that population in mind, Governor Michael Leavitt proposed
that Utah develop an electronic high school that would deliver all of
the secondary curriculum throughout the state. The nine state operated
colleges and universities were likewise charged to deliver courses to
rural Utah. However, it quickly became obvious that Wasatch Front
students were also able to benefit from electronic delivery.
The Electronic High School serves four major groups of students:
those who have failed a class and need to make up credit, those who
wish to take a class not offered at their school, those who wish to
take additional classes to accelerate graduation, and those who home
school. We deliver our courses using three different media: broadcast
television, a two-way voice/video/data system (EDNET), and over the--
Internet,
The broadcast television courses are generally concurrent
enrollment courses where students earn both high school and college
credit concurrently, They are taught by college or university
personnel. These classes are synchronous--that is, they have a definite
starting date and stopping date.
The EDNET courses are delivered either by microwave, T-1 line, or
fiber optic line to about 200 studios in 165 high schools, applied
technology centers, colleges, universities, and a few scattered
additional sites. A typical studio has two or more television sets, two
or more cameras, a computes, and a tax machine. The teacher is located
in one studio and students are located in two or more other EDNET
locations. These classes are also synchronous.
The internet classes are typically asynchronous. Students may begin
on any given day and work at their own pace. There are a few
exceptions, such as our English courses that begin each eight weeks in
order to keep a cadre of students together for interaction. By
September of this year we will have all thirty secondary core courses
available with twenty additional courses under development.
All of these services travel through the Utah Education Network
(UEN) facilities housed at the Eccles Broadcast Center on the
University of Utah campus. UEN also handles High Education's electronic
traffic.
Higher education's delivery of classes differs froze the Electronic
High School in. a significant way. They are delivering distance-
learning courses for original credit only. With only nine state-
supported colleges and universities, the distance-learning network
reaches into remote areas of Utah with great success. Utah State
University has an extensive network of distance-learning satellite
reception sites that have been positively augmented with EDNET studies.
Bait Lake Community College, Utah Valley State College (Provo/Orem),
and Southern Utah University (Cedar City) have begun aggressively
producing Internet delivered classes
The numbers of students served during the
past academic year include:
The Electronic High School................ 37 broadcast television
classes
168 EDNET classes
12 Internet classes
Total enrollment--32,000 credits
(equivalent to a 4,600 student high
school)
Higher Education.......................... 35 broadcast television
classes
233 EDNET classes
181 Internet
Total enrollment.......................... 8,134 students
Each of the courses taught, whether in public or higher education,
is comprised of a finite number of students with access to the class
controlled by password or student enrollment--Students who take classes
delivered by broadcast television must enroll with a college or
university in order to have credit recorded. Similarly, they must have
received permission from a high school counselor in order to receive
high school credit.
Students who enroll in EDNET courses must have access to an EDNET
studio. The numbers of students enrolled are similar to those in a
face-to-face teaching situation.
Students who enroll in internet courses go through a password-
protected portal to enter the class. The numbers are controlled and
access to materials limited by the teacher.
The benefits of distance learning are many and varied. Perhaps the
most significant benefit is the availability of courses to students who
live in remote areas of the state. An example would be West Desert High
School in Trout Creek, which has a total 7th through 12th grade
population of 29. Although this school does not have a level-4 licensed
math teacher, every senior was able to take calculus last year through
distance-learning.
The Electronic High School is developing foreign language courses
in Spanish, French, German, Japanese, Russian, and Arabic. Each of
these courses draws on native speakers who can be accessed over the
internet, The Navajo Nation is also developing courses in the Navajo
language that well be accessible electronically.
Distance education levels the playing field for students across the
state. It does not matter whether they are in a densely populated urban
area or a sparsely populated rural. setting, every class is available
to them
The flexibility we .rseod i.s to be a.ble to treat each distance
learning class as if it is, in fact, face-tofare anstmction with the
earns fair use guidelines we enforce in traditional classrooms. We are
fully in support of S. 487.
Chairman Hatch. Well, thank you, Mr. Siddoway. We
appreciate you.
Mr. LeBlanc?
STATEMENT OF PAUL LEBLANC, PRESIDENT, MARLBORO COLLEGE,
MARLBORO, VERMONT
Mr. LeBlanc. Mr. Chairman, Mr. Leahy, thank you for the
opportunity to offer testimony on the TEACH Act.
I would like to just offer a little bit of brief background
on Marlboro College. We have used distance education to reach
beyond our relative remoteness, our geographical remoteness, to
create and extend programs in ways unimaginable to us just 10
to 15 years ago.
We offered the country's first e-commerce degree program 3
years ago, and have since expanded to work with engineers and
educators. We offer a combination of wholly online programs and
hybrid programs, programs that ask students to work online with
their instructors for 2 weeks at a time and then travel to
Vermont. We just returned from Europe, where we are about to
pilot a new program that will simultaneously serve learners in
Europe, the Middle East, Africa, and India at the same time.
Our distance learning programs and activities have also
become the core of a number of other important initiatives in
southern Vermont, including a new technology incubator and work
in open source courseware. One of the great strides really in
the last 10 years in distance learning has been the creation of
extremely powerful online learning environments, and one of the
things that makes those learning environments as powerful as
they are is the ability, in combination with broader bandwidth,
to offer rich media to students at a distance.
Turning to the specifics of the TEACH Act, we applaud the
elimination of current eligibility requirements having to do
with physical classrooms. The essential and core benefit of
distance education is to free learners from traditional
constraints of time and space.
Our students come to Marlboro every other weekend, and in
the intervening 2 weeks they are widely and geographically
distributed. They go online at a variety of times. They do it
from a variety of places, including their offices and often at
home, at night, when the kids are tucked in, the dishes are
picked up, and they finally can turn to their learning
experience.
To the extent that distance education can help us control
the cost of higher education, an ongoing issue, insisting on
the provision of physical classrooms for online delivery is
simply out of step with how it happens and it is simply out of
step with any attempt to try to control those costs.
The second proposal of the TEACH Act that we would like to
address has to do with transmission. The proposal seems to us a
common-sensical response to some basic tenets or facets of
network topography. Our students at any given time are working
from home, as I mentioned before, and for them to download
material, that material literally hits in some cases thousands
of servers, passing their way through the network until they
arrive at the student's own computer and cache.
We see no basic threat to copyright in this basic condition
of how networks operate. Caches are routinely flushed. As many
of you know, servers are often maintained and flushed on a 2-
hour basis. In combination with the use of portions of rich
media materials, which is pointed out later, and also the fact
that most of our providers have access passwords--we are
protecting our markets in some ways, and the combination of
those aspects, we think, serve to address the concerns of
copyright owners in this matter.
The exemption regarding the use of various media is also
extremely important to us. We certainly respect the anxiety
that copyright owners feel over control of their properties,
but we see no legitimate threat in the regular use of portions
of those materials for the purposes of instruction.
We have had any number of examples in our own work where we
have come up against what we think are too rigid restrictions
on use. For example, a few years ago, in teaching a Shakespeare
class we had students creating multimedia presentations on a
number of plays. In one case, a student wanted to use 15
seconds from Kenneth Branaugh's ``Henry V.'' It took us almost
2 weeks to track down the right person with whom to speak, and
when we finally had that conversation they reported back to us
that it would cost the student $2,000 for a one-time use of
that video.
More recently, we have a student in our graduate class who
has done a wonderful presentation for a marketing online
course, but could not share that with his students in a study
group because, again, he had to wait until they arrived on
campus 2 weeks later. I would like to show it to you very
quickly, and I will show you the piece that was in question.
[Video shown.]
Mr. LeBlanc. The approximately 8 seconds of audio you heard
was the audio in question. We could not use it in the
instructional setting. We think that no reasonable even
practiced Napster user would be interested in such a short clip
from a popular piece of music.
At the K-12 level, I think the issue is even more pressing.
We have students working in a master of arts in teaching
program, and in one case a teacher of a graduate student who
wanted to use a small portion of the Magic School Bus program
tried to track down licensing, in this case had to turn to the
MPLC, and in this case the fees were between $2 and $8,000,
depending on the length of the clip.
By the way, again, the interaction took more than 2 weeks
and really mitigates against any timely and responsive
instruction for classroom teachers. We think this is a
tremendous issue, actually, in K-12, a more pressing issue.
Lastly, we would like to turn to and applaud the
reiteration of the Kerrey Commission's call for agreed-upon
guidelines for fair use of digital materials.
Senator Leahy [presiding]. Mr. LeBlanc, I don't want to
interrupt, but we are going to have votes scheduled. I don't
want to cut into Mr. Carpentier's time.
Mr. LeBlanc. The last piece, only that we do see a need for
clarification on this. We do believe there are many good
resources available. We use them in training our own teachers.
They exist at the college level. They don't exist in K-12.
Thank you.
[The prepared statement of Mr. LeBlanc follows:]
Prepared Statement of Dr. Paul LeBlanc, President, Marlboro College,
Marlboro, VT
Thank you Mr. Chairman, Senator Leahy.
I'd like to begin with some background on the Graduate Center of
Marlboro College, an innovative branch of our institution that provides
internet-based curriculum to working professionals.
Three years ago, we introduced the first e-commerce degree in the
nation, followed quickly by two additional graduate programs for
engineers and educators. In addition, we're preparing to launch a
wholly online Internet Teaching Certificate program that will target K-
12 teachers specifically. Given our programming, the proposed TEACH
legislation is of great interest to us and we applaud your extensive
work with the Office of Copyrights to enact these minor changes that
will so greatly expand what our students are able to accomplish in
their studies.
Other activities of The Graduate Center have included innovative
partnerships and software development to foster a richly-interactive,
comprehensive virtual learning environment.
The software environment that our designers have created is capable
of supporting rich media; however, it is currently underutilized due to
the prohibitive expense and paperwork involved in licensing and
distributing copyrighted materials for use in distance instruction.
I'd like to pause for a moment to address the technological aspects
of transient copies. As many of you know, a network server must send
digital packets to literally hundreds of servers before it reaches the
intended recipients through the world wide web. However, servers that
receive intermediate copies routinely have their memory cache flushed,
the remnants of those data are often incomplete, and if the proposed
amendments are approved, at best, ``hackers'' would obtain unauthorized
access to small excerpts of rich media, which, out of the context of
instruction, are essentially so devoid of value as to be an
insignificant threat to primary markets for the source materials.
Although this transmission technology is also safeguarded by the
provisions of secure servers, encryption, and user passwords, we are
still experiencing the frustration of not being able to serve our
distant students as fully as we are currently able to serve their
residential counterparts who can attend in a ``traditional'' classroom.
One example that comes to mind from my personal experience was the
request to use a small excerpt from the Branagh version of a
Shakespeare play, which would have taken months of paperwork and
thousands of dollars to accomplish. Unfortunately for our students, I
abandoned a sound pedagogical plan because of the obstacles.
An example taken from our graduate courses demonstrates clearly as
well, the ongoing struggle between valid instructional use of
copyrighted materials and the restrictions against using sound
recordings in our online courses.
As this marketing student's campaign illustrates, the inclusion of
just 8 seconds from the licensed popular song ``Everybody Dance Now''
has now rendered an otherwise excellent model of instructional
excellence in developing an effective campaign inaccessible to our
distant students.
We see this disadvantage even more dramatically at the K-12 level,
where one of our education students was interested in obtaining a
segment of the popular ``Magic School Bus'' science series, the
production of which is co-sponsored by the NSF. The teacher found that
the process and expense of obtaining license from the MPLC were both
prohibitive and prevented the delivery of timely instruction in an
innovative delivery system.
Finally, in closing we'd like to applaud the Senators' provisions
of copyright education resources to all students and faculty members
who engage in distance learning environments. At Marlboro College, we
are grateful to the Library of Congress for its excellent website,
filled with educational resources to which we regularly refer our
teachers and students in their coursework. In addition, we refer our
faculty specifically to the ``Crash Course in Copyright'' website
hosted at the University of Texas, in Austin.
Thank you for your attention, Mr. Chairman, Senator Leahy.
Senator Leahy. Thank you very much. As you know, I have
visited up there and I am very impressed with what you are
doing.
Professor Carpentier? We would say in Vermont Carpentier.
How do you pronounce it?
Mr. Carpentier. Both.
Senator Leahy. Both, OK. Go ahead.
STATEMENT OF GARY CARPENTIER, ADJUNCT PROFESSOR OF LAW,
WASHINGTON COLLEGE OF LAW, AMERICAN UNIVERSITY, WASHINGTON,
D.C.
Mr. Carpentier. It is a great privilege to speak to you
today about the Technology, Education, and Copyright
Harmonization Act of 2001. I am Gary Carpentier, Adjunct
Professor of Law at the LL.M. Program in International Legal
Studies at the Washington College of Law. My views here today
are my own and not the views of the College of Law.
Together with my colleague, Professor James Holbein, the
Washington College of Law is creating an Internet-based law
course on the North American Free Trade Agreement. The
Washington College of Law has created a consortium of nine
different schools on the North American continent--Case Western
Reserve University School of Law and University of New Mexico
School of Law in the United States, three schools in Mexico,
and three schools in Canada.
This legislation comes at an important juncture in the
evolution of distance education. Traditional teaching
techniques have been outpaced by the opportunities in an online
world. The Act strikes a balance between the creators and the
holders of the copyright and those seeking to use such works in
education and research. It broadens the existing definitions of
reproduction and distribution rights, and it modifies our
reality and our concept of permitted transmissions under
existing exemptions and the fair use doctrine.
The debate continues between copyright-holders and users,
and how technological advances work for both groups and satisfy
their needs. Content owners can be secure in knowing that there
are limitations in place to assure that their works will not be
otherwise commercially exploited. Educators will employ this
legislation as a guideline to permissible activities within
such limited and reasonable uses of expanded categories without
the chilling effect of negotiating a license for every type of
transmission.
The bill preserves many of the underlying policy objectives
and the intent of traditional systematic education or classroom
experience. Even though transmissions are not limited to the
physical classroom, the bill includes safeguards of restricting
the classes of eligible recipients to those students and
employees enrolled in courses in which such transmissions are
made.
In the design of our online NAFTA course, we have to
consider the evolution of the current copyright regime. This
legislation will make our job easier to allow us to stay on the
cutting edge of technology, and thereby providing the best
education for our students in all nine law schools in the
consortium.
It was also useful to examine the relationship of this
proposed legislation on our international trade agreements. It
is my opinion that S. 487 should not violate our obligations
under international intellectual property agreements.
The Berne Convention provides for the copying of the
portions of work that have already been made available to the
public if it is within the guidelines of the fair use doctrine
and does not exceed the justified purpose. In addition, it is a
matter of domestic law to determine the use of works protected
by copyrights for teaching purposes.
The WTO Agreement on Trade-Related Aspects of Intellectual
Property Rights, generally known as TRIPS, provides that
exceptions to the copyrights must be limited to special cases
that do not conflict with the normal exploitation of the work
and do not unreasonably prejudice legitimate interests of the
rights-holders. In establishing the right to use limited
portions of copyright works for teaching purposes, this
legislation falls within the parameters of these international
obligations.
In the interests of time, I would like to conclude that the
Act has embodied recommendations suggested by the U.S.
Copyright Office Report on Copyright Law and Digital Distance
Education. It promotes digital distance learning by permitting
certain limited instructional activities to take place without
the risk of copyright infringement, and encourages the
transmitters of such information to inform its users about the
proper use of copyright laws.
This legislation will greatly enhance the use of cutting-
edge technologies such as public and private key encryption
techniques to restrict the retransmission of documents, books,
streaming music, and streaming video clips, digital
certificates that authenticate the identity of users, as well
as digital watermarks that help track location and use by
unauthorized users.
I look forward to working with the Committee to help enact
this legislation into law. It is critical that we respond with
solutions that enable our citizenry. I am in particular support
of Chairman Hatch's suggestions and reforms that allow students
to take a lighter class load than is now required to benefit
from financial aid. Imagine the opportunities and the impact
that non-traditional students such as working mothers and
lifelong learners will be able to take advantage of such online
offerings.
We must enable smaller institutions to out-source Web
service to enable them to join the online educational
community. They must be able to overcome the barriers to entry
to this market. They must be able to access infrastructure,
capital, and human resources. Altogether, this makes for a
formidable package of reforms to promote the use of the
Internet in educational offerings to all American students, no
matter what age or locale--access to the best education
anytime, anywhere.
I want to thank Chairman Hatch and Senator Leahy for this
opportunity to testify before you today.
[The prepared statement of Mr. Carpentier follows:]
Prepared Statement of Professor Gary Carpentier, Adjunct Professor of
Law, LL.M., Program in International Legal Studies, The Washington
College of Law, The American University, Washington, DC
Thank you Chairman Hatch, Senator Leahy, distinguished Senators and
colleagues, it is a great privilege to speak with you today about the
``The Technology, Education and Copyright Harmonization Act of 2001''.
lam Gary Carpentier, Adjunct Professor of Law in the LL.M. Program of
International Legal Studies at The Washington College of Law at the
American University here in Washington, DC. The views that I am
presenting here today are my own and not those of The Washington
College of Law.
Together with my colleague, Professor James Holbein, the Washington
College of Law is creating an Internet based law course on the North
American Free Trade Agreement. The Washington College of Law has
created a consortium of nine law schools on the North American
continent that will present this course. Case Western Reserve
University Law School and the University of New Mexico School of Law in
the United States, three university law schools in Canada and three in
Mexico.
This legislation comes at an important junction in the evolution of
digital distance education. It embraces the need to adapt to new
technological advancements in information delivery and educational
synthesis. Traditional teaching techniques have been outpaced by the
opportunities in an online world.
The Technology, Education and Copyright Harmonization Act of 2001
strikes a balance between the rights of the creators and holders of the
copyright and those seeking to use such works for education and
research.
S. 487 broadens existing definitions of reproduction and
distribution rights. It modifies the reality of our concept of
permitted transmissions under existing exemptions and the fair use
doctrine.
The debate continues between copyright holders and users about how
can technological advances work for both groups and satisfy their
needs. Content owners can be secure in knowing that there are
limitations in place to assure that their works will not be otherwise
commercially exploited. Educators will employ this legislation as a
guideline to permissible activities within such ``limited and
reasonable'' uses of expanded categories without the chilling effect of
negotiating a license for every type of transmission.
The bill preserves many of the underlying policy objectives and
intent of the traditional systematic educational or classroom
experience. Even though transmissions are not limited to a physical
classroom, the bill includes the safeguard of restricting the classes
of eligible recipients to those students and employees enrolled in
courses in which such transmissions are made.
I feel that the Committee should seek more meaningful and
contemporary criteria for eligibility requirements of institutions
seeking any exemption under the contemplated legislation. Bona fide
educational institutions are no longer limited to ``non-profits''.
While accreditation status advances the analysis, it still leaves many
questions unanswered. Until standards become more uniform, this is our
most rational starting point. We can no longer theorize how a system
``should'' work. We must put theory into action.
In the design of our online NAFTA course, we had to consider the
evolution of the current copyright regime. This legislation will make
our job easier and allow us to stay on the cutting edge of technology
and thereby providing the best possible education for students in all
nine law schools in the consortium. They are: The Washington College of
Law; Case Western Reserve University Law School; The University of New
Mexico School of Law; University of Ottawa; Universite de Montreal;
University of Western Ontario; Universidad Nacional Autonoma de Mexico
(UNAM) in Mexico City; Universidad de Guanajuato in Guanajuato; and
Universidad de Baja California (UABC): Tijuana.
It is also useful to examine the relationship that this proposed
legislation has on our international trade agreements. It is my opinion
that S. 487 should not violate our obligations under international
intellectual property agreements. The Berne Convention provides for the
copying of portions of a work that has already made available to the
public, if it is within the guidelines of the fair use doctrine and
does not exceed that justified purpose. In addition, it is a matter of
domestic law to determine the use of works protected by copyright for
teaching purposes. The World Trade Organization (WTO) Agreement on
Trade-Related Aspects of Intellectual Property Rights, generally know
as the TRIPS Agreement, provides that exceptions to copyrights must be
limited to special cases which do not conflict with a normal
exploitation of the work and do not unreasonably prejudice the
legitimate interests of the rights-holder. In establishing the right to
use limited portions of copyrighted works for teaching purposes, this
legislation falls within the parameters of these international
obligations.
This legislation is consistent with the Berne Convention and the
TRIPS Agreement. It is confined to the non-commercial use of some
aspects of copyrighted works, for teaching and research purposes only.
This is a very different situation than the disputes that have arisen
under the TRIPS Agreement. For example, Canada permitted one of its
cable television channels to receive and re-broadcast country music
without paying the appropriate license fees to U.S. rights holders. A
resolution to that dispute was reached under the NAFTA Chapter 20
consultation process. This situation is different from the limited,
non-commercial, educational uses of protected works already covered by
Sections 107 and 110 of the Copyright Act.
Under U.S. law the doctrine of ``fair use'' in Section 107 covers
the activities envisioned in the legislation. Section 110, which is
being amended, already permits the use of these types materials for
teaching purposes. Typically, educators are reasonably careful to
obtain copyright permission when using portions of protected works for
classroom presentation, handouts, textbooks, etc. That practice is not
discouraged by this legislation. Rather, this Act will help to ensure
the free exchange of ideas within the contemplated in the U.S.
Constitution in article I, section 8. where it states, ``Congress shall
have the power to promote the progress of science and useful arts. . .
.'' In order to stay competitive in a global economy, we must foster
``anytime, anywhere learning'' to fit the needs of young people and
lifetime learners.
I look forward to working with the Committee to help enact this
legislation into a law. It is critical that we respond with solutions
that enable our citizenry. I am in particular support of Chairman
Hatch's suggested reforms that allow students who take a lighter class
load than is now required benefit from financial aid. Imagine the
opportunities and impact that would have on non-traditional students,
such as working mothers and lifelong learners to be able to take
advantage of online offerings. We must enable smaller institutions to
outsource web services to enable them to join the online educational
community. They must be able to overcome the barriers to entry to the
market. They must be able to access infrastructure, capital and human
resources. All together, this makes a formidable package of reforms to
promote the use of the Internet in educational offerings for all
American students, no matter what age or locale. Access the best
education, anytime, anywhere.
I want to thank Chairman Hatch and the Committee for this
opportunity to testify before you today.
Senator Leahy. Thank you.
We will hold for just a moment.
Senator Hatch is back.
Chairman Hatch. I apologize for having to leave for a
minute. Let me just ask a few questions.
Mr. Siddoway, you mentioned how the Electronic High School
serves students with special needs in Utah, including those who
cannot get to class because they either have a disability that
keeps them from school or they live far enough away from the
school that offers that particular class.
Could you tell us how important making these classes
available online is to those students and tell us how you think
audio-visual or sound recording components to a language class
or a science class offered on the Internet would enhance the
learning opportunities of those students in Utah and elsewhere?
Mr. Siddoway. Thank you for that question. As you may be
aware--I know Senator Hatch is--Utah is a fairly rural State.
We have 2.25 million people. Of those 2.25 million people, 85
percent of them live on a 75-mile strip, on what we call the
Wasatch Front, the west slope of the Wasatch Mountains. The
rest of the State is fairly rural, and 90 percent of the
geography of the state houses that 15 percent.
We are delivering courses to such diverse places as Trout
Creek, West Desert High School, with a total 7-12 population of
29; to Navajo Mountain that you cannot reach from Utah. You go
into Arizona to get back to Navajo Mountain. All of those
classes are enhanced.
We are video streaming and we are audio streaming now. For
example, we have a Navajo language class beginning in Blanding,
Utah. Of course, Navajo was the one code that the Japanese did
not break during the Second World War. It is a difficult
language, and if we are not able to audio stream it--and, of
course, we are doing it with Native speakers, so that is
available. A number of these courses could benefit greatly if
we could use commercially prepared material and have the rights
to use portions of it over the Internet.
Chairman Hatch. I see.
Mr. Carpentier, as a lecturer and course designer, do you
think our legislative efforts that we are offering here will
significantly help promote the use of high-technology tools
like the Internet in education?
Mr. Carpentier. It gives the ability of a teacher to create
compelling courses, hyperlinks that can access resources, music
clips, video clips. The copyright laws as they are framed
within your legislation helps the less savvy copyright user to
create new and interesting course work. It is really important
that they can use this as a guideline and can take advantage of
this opportunity.
In addition to giving this copyright a safe harbor, I think
it is important to highlight the reforms that you mentioned in
your opening statement, and that is to give access to
institutions and students within the system. Smaller
institutions need access to infrastructure, capital, human
resources.
Non-traditional learners such as working mothers, people in
rural settings, also need access to the system. This
legislation gives those folks that ability to learn anytime,
anywhere, and I think it is really important that we all work
together to come up with a solution immediately to stay
competitive.
Chairman Hatch. Well, thank you.
In addition to chairing this Committee, I chair the Trade
Subcommittee of the Finance Committee, as well, and I have long
been concerned about effective copyright protection abroad.
Ms. Peters, I am a strong supporter of the TRIPS agreement.
Would an expanded section 110(2) exemption be consistent with
our obligations under the Berne Convention and the WTO TRIPS
agreement?
Ms. Peters. Professor Carpentier basically said that he
thought that it would not violate our international agreements,
and I clearly think it does not. The way that the TRIPS
agreement is worded, you can have exceptions or limitations if
there are certain special cases and if they don't conflict with
the normal exploitation of the work and don't unreasonably
prejudice the legitimate interests of the rights-holder.
Clearly, systematic instructional activities is a very
limited, special case. I think the safeguards that are put in
here with regard to who can get the work and the reasonable and
limited portions for audio-visual works on sound recordings, as
well as the requirement for technological protection measures,
clearly make this an exception that would pass muster.
Chairman Hatch. Mr. Heeger--and the other representatives
of educational institutions can also address this if they
wish--do you now employ in your Internet offerings access and
copy controls, and do you believe most educational institutions
could comply with the requirements of this bill to implement
such controls?
Mr. Heeger. Mr. Chairman, quality distance education
carries the obligation on the part of the provider to provide
extraordinary and deep services to the students, and to provide
controls as well on the copyrighted material. At my university,
we have put a great deal of effort in terms of copyright
management programs. We have an extensive licensing program and
we have an extensive program of access control.
Nonetheless, I think managing those issues is onerous, and
institutions have to learn a great deal in order to do it. We
are committed to complying with all the regulations. I have
found in my work across the country all of the institutions
that I am working with are equally committed to complying with
all of the regulations, and I have no doubt as copy control
techniques become more and more available, those too will be
eagerly embraced. Institutions need clear rules of the road so
that they can function effectively in developing distance
education.
Chairman Hatch. Thank you, Mr. Heeger.
My time is up.
Senator Leahy?
Senator Leahy. Thank you, Mr. Chairman. I notice in Mr.
Adler's testimony he speaks of our legislation as being
unworkable, and if it continues as it is that apparently
Senator Hatch and I are involved in a theft. He would call it
the Heist Act. At another time, I used to prosecute thieves. I
have never been accused of being one.
I have a great deal of respect for both Mr. Adler and the
publishers, but I think that this may be protesting a bit much.
I totally disagree with him, but he may draw that conclusion.
Ms. Peters, do you think this legislation is unworkable?
Ms. Peters. No. Obviously, we wouldn't have proposed it if
we thought it was unworkable. I think it is carefully crafted.
I think that the concerns that Mr. Adler spoke of--his concern
about having full text available, his concern that it
interfered with licensing markets--are concerns, but I do think
that the way that this is crafted, those markets are preserved
and the technological protection measures will take care of a
lot of the concerns that he has.
Senator Leahy. Thank you.
Yesterday, 18 leading high-tech CEOs sent a letter to the
President and also to the Congressional leadership, and they
said that improving the Nation's education system must be a
national priority. Teachers and students have to have a high-
quality curriculum; they have to have sustained professional
development, particularly in math, science and technology
skills.
I happen to totally agree with that, and I think that if we
are going to compete with the rest of the world, we have got to
do much, much better than we are currently doing. I know this
is not news to Mr. LeBlanc, as President of Marlboro College.
As his testimony shows, they have begun offering a graduate
program for teachers on how to use the Internet for
instruction.
A lot of the focus of the distance learning debate has been
on college and adult-level education, and computers and the
promise of distance learning, the opportunity of students at
any age. I am concerned with small schools, and I am thinking
of one.
Paul, I don't know if you know it, but in Granville,
Vermont, there is one of the very few one-room schoolhouses
still existing. It is one of the schools I go online with all
the time because the kids ask such great questions. Some of
them go on to become Merit Scholars. Many of them have gotten
scholarships to some of the most prestigious universities in
our country.
But I worry that they are not near a college; they are not
near a university. They are down in a small forestry product
community, and I wonder if they could end up either misusing
digital information or not taking full advantage, out of fear
that they may overstep their bounds. They are not going to have
lawyers on staff to tell them what they can or cannot do.
One of the things that Senator Hatch and I thought about in
the TEACH Act is we want a conference that will try to provide
easy to understand guidelines for schools in the use of
copyrighted works, so somebody can just go out and say, yes,
no, can I do this, can I not do this. Would this be helpful in
small schools, elementary schools, I mean the kinds of things
that you and I are familiar with in our own State of Vermont?
Mr. LeBlanc. It would be extremely helpful. Teachers often
in those rural, more isolated schools don't have access, as you
have pointed out, to these sorts of guidelines. We could do a
better job of creating guidelines that fit more precisely the
K-12 context, and then I would argue those guidelines should be
available in the training which gets teachers to use them and
understand how to use them and where they are. And they can be
made simple. We think there are ample models out there now, by
the way, as I said at the end of my testimony. We think it is
important piece.
Right now, what we are seeing is that access and cost of
technology is outstripping the ability to deliver rich content
to kids; that is, schools are being wired, the cost of boxes or
computers are coming down. Yet, it is very difficult for our
teachers, the teachers we are training, to easily get access to
content and to do it in an affordable manner.
Senator Leahy. Let me ask a question of Ms. Peters, and
anybody else can feel free to jump in on it. The TEACH Act
expands the distance education exemption in current law. It
permits the reproduction and distribution of copyrighted works
to the extent technically necessary to transmit work otherwise
covered by the exemption. But the copies are not to be retained
any longer than necessary to complete the transmission. If they
are, the exemption doesn't apply any longer.
Some institutions have raised the question of caching or
automatic storage in the Internet service browser. Do we need
additional language in here to make clear that automatic
caching would be covered by the expanded exemption?
Ms. Peters. In our testimony, we mentioned that we probably
were too restrictive and that institutions don't have control
over what happens down the line, and that we would be willing
to work out language that is appropriate.
Senator Leahy. I am concerned about some potential
liability for the schools, when it wasn't something they tried
to do.
Does anybody else care to speak to that?
Mr. Adler. Senator, if I may comment, let me say that
neither I nor the publishers I represent would ever have any
reason to suspect either you or the Chairman of untoward
motivations in introducing this legislation.
Senator Leahy. I don't want to leave the suggestion that
you do. As I said, I have a great deal of respect both for you
and your organization.
Mr. Adler. We are simply concerned that in your beneficence
you may inadvertently provide the tools for some people to do
that.
On the issue of automatic caching, we understand the
problem, and the comments we have made in the testimony with
respect to transient copies basically would apply there as well
so long as the cached copies cannot themselves be accessed to
be used independently for reproducing and redistributing these
materials. We understand the role that caching plays in the
process and we will work with you and the Register to
accomplish that.
Senator Leahy. You know, what might be a good idea, Mr.
Chairman, is at some point--and it might be good not as a
regular hearing, but it might be good for the other members of
the Committee just to get some of the technical people in and
do a demonstration, and have Ms. Peters and Mr. Adler and
others here to say, OK, that we like, that we don't like. I
think it could be something even the Internet Caucus could put
together. It is so easy to speak on the dry aspects of it, but
to see what really does work and what would be allowed under
the law and what would not be allowed under the law might be
something worth trying.
Chairman Hatch. Sure.
Well, this has been an interesting panel to me. We are
trying to do what is right here, and we have paid particular
attention to you, Mr. Adler, and your concerns. But each one of
you has been very helpful to the Committee here today. We are
going to try and do what is right.
Blame Ms. Peters.
[Laughter.]
Mr. Adler. Mr. Chairman, we would like just to ask you, in
particular, to pay particular attention to how the issue of
displaying a work is treated because display in the context of
interactive digital networks like the Internet now means
something very different than it did in the context of analog
broadcast television. It is essentially the basis of the
nascent e-book to display a work, but to do so in digital
formats that allow it to be fully usable, searchable, capable
of being notated.
Chairman Hatch. And downloaded, and so forth. We
understand.
Senator Leahy. Yes. In fact, we are dealing with a whole
change in your business, in publishing, of course. I am very
conscious of the fact that we are not going to have any works
to display unless people can be paid for the product of their
work. Now, that may be a lot different in the future in the way
they are going to distribute it. The type of payment and all
may change.
The good part is that authors and scholars who create these
works should be paid for what they are doing, and the people
who publish them, and so on. But, also, you don't want the
situation we have. We have schools in this country, and some in
some fairly affluent areas, where if you go to the government
text Jimmy Carter is still President. You can imagine what it
is like when you go to either world history or world geography
kinds of things and you have got globes and maps with countries
that no longer exist and a whole lot of countries that have
come into being.
My eldest son was at the house the other day and we were
cleaning out a closet and there was a globe he had in high
school, which was the most modern, up-to-date at the time. This
was 15 years ago, and I remember when we gave it to him it was
the most up-to-date globe you could get. And it was remarkable.
I mean, you go to the former Yugoslavia, you go to the former
Soviet Union and you see all these changes.
But with constant electronic updating, children can keep up
with that, and so we have got to get that balance. Children
should not have totally out-of-date texts. They should not have
to study that way, but we need to get the balance right.
Chairman Hatch. Well, we look forward to working with
everybody who happens to be interested in updating and
improving the educational opportunities of our students around
the country. By using technology like the Internet and by
assisting our educators in offering compelling content, we
think that we can upgradethe quality of education for our kids
all over America.
So we want to particularly thank you again, Ms. Peters, for
the work that you have done in helping us. You have heard some
of the suggestions here today. We would like to have your best
advice on this bill. We don't want to do anything that isn't
right, but we do think that this is something that has to be
done. So we want to thank all of you for being here.
With that, we are grateful for this hearing and we are
grateful to have your testimony. We will adjourn until further
notice.
[Whereupon, at 11:04 a.m., the Committee was adjourned.]
[Questions and answers and a submission for the record
follow:]
QUESTIONS AND ANSWERS
Responses of Allan Robert Adler to questions submitted by Senator Leahy
Question 1: The TEACH Act does not change the limitation in current
law applying the distance education exemption in section 110(2) only to
``non-profit'' educational institutions. For-profit educational
institutions have never qualified for the exemption. The Copyright
Office and content owners have raised a legitimate question about
whether ``non-profit'' is an appropriate qualifier since some ``non-
profit'' institutions may not be bona fide educational institutions.
Should the requirement that the educational institution be
``accredited'' before it is able to qualify for the exemption be added?
Answer: 1: The proposed revised exemption will confer a substantial
economic benefit on eligible institutional users of copyrighted works
at the expense of the lawful property interests of authors, publishers
and other copyright owners. To justify such a government mandate and
prevent abuses of the privilege it bestows, institutions seeking to use
such works pursuant to the exemption should at least be required to
demonstrate that they reasonably can be expected to do so in compliance
with both (1) the terms of the exemption and (2) the intent of Congress
that the exemption should serve to facilitate the provision of high-
quality online educational experiences. One way in which this can
objectively be accomplished is through ``accreditation'' requirements
for eligibility to claim the exemption. [NOTE: AAP understands this
question to ask whether ``accredited'' should be ``added'' to the
current ``non-profit'' qualifier, rather than substituted for it. If,
however, this understanding is incorrect, and the intent of the
question is to inquire whether ``accredited'' educational institutions
should qualify for the exemption, regardless of their non-profit or
for-profit status, the responses to Questions 1 & 2 should be read
together.]
For institutions of higher education, ``accreditation'' is a well-
established prerequisite of eligibility to participate in the federal
Title IV student financial assistance programs. The Secretary of
Education, pursuant to Congressional directives, has already
promulgated standards and criteria that accrediting agencies must meet
in order to be ``recognized'' by the Secretary as qualified to accredit
both for-profit and non-profit institutions of higher education for the
purpose of making such institutions eligible to participate in Title IV
funding programs. See 20 U.S.C. 1099b; 34 CFR 602.1-602.50. These
include detailed specifications regarding various aspects of an
institution's programs, performance and resources that must be assessed
in order to make an accreditation decision.
At present, distance education programs offered by such
institutions are restricted from full Title IV eligibility, pending
Congressional review of the Secretary's report evaluating
``demonstration programs'' that were authorized by Congress to permit
participating institutions to offer such programs without meeting
certain requirements that generally restrict their Title IV
eligibility. See 20 U.S.C. 1093. Among the recommendations of the Web-
Based Education Commission is a full review and, if necessary, a
revision of the 12-hour rule, 50 percent rule and other specific
requirements that currently restrict full eligibility of distance
education programs for Title IV funding.
A review by the Department of Education and Congress of the
appropriate distance education accreditation standards and requirements
with respect to Title IV student financial assistance eligibility for
offering institutions of higher education could, in turn, help to
determine appropriate accreditation standards and requirements to
qualify distance education programs of non-profit institutions of
higher education with respect to eligibility for coverage by the
revised distance education copyright exemption proposed in S. 487.
Assuming that this exercise would appropriately address the
institutional issues that are relevant to eligibility for the exemption
but are not currently assessed under existing accreditation criteria
(such as the institution's compliance with the exemption's requirements
to apply ``technological measures'' that reasonably prevent
unauthorized access to and dissemination of copyrighted works used in
the exempt transmissions), such accreditation standards and
requirements could also be adapted for purposes of qualifying the
eligibility of non-profit elementary and secondary education
institutions for coverage by the exemption. Unlike institutions of
higher education, institutions that provide elementary and secondary
education are not currently subject to general accreditation standards
and requirements with respect to their eligibility for participation in
federal education funding programs, but instead must qualify for
eligibility under the particular standards and requirements of each of
the many different funding programs according to the purpose of each
program.
Question 2: Many sponsors of distance education programs are not
purely ``non-profit.'' Some non-profit schools have begun to engage in
distance education for profit, some commercial entities are forming
partnerships with non-profit institutions to offer distance education,
and some commercial textbook publishers, like Harcourt General, want to
provide full-service distance education programs for accredited college
degrees directly. Competition between the non-profit and for-profit
distance learning programs is good for the country. Do you think that
retaining the non-profit requirement in current law helps non-profit
educational institutions compete?
Answer: 2: It seems logical to assume that retaining the ``non-
profit'' requirement in the revised exemption would help non-profit
educational institutions to compete with for-profit educational
institutions in the provision of distance learning programs because, in
many instances, it would effectively allow the former to avoid certain
costs that may have to be borne by the latter for their identical uses
of the same copyrighted works in offering online distance education
programs. Absent a credible ``fair use'' claim, these costs consist of
expenditures in time, effort and money necessary to obtain the
permission of the copyright owner for that use. Assuming that other
costs to produce and deliver similar programs are the same, the
avoidance of these costs result in lower costs for the non-profit's
production of the online education program, and would presumably allow
the non-profit institution to offer the program for a lower fee or
tuition, which would (other things being equal) make its program more
attractive in the marketplace than the same program offered by the for-
profit institution. Moreover, avoidance of these costs could allow the
non-profit institution to use more or better-quality copyrighted works
that might be unaffordable for the for-profit institution, again making
the non-profit's program more attractive in the marketplace.
Of course, asking whether retention of the ``non-profit''
requirement helps such institutions to compete is much different than
asking either whether retention of the requirement is needed in order
for non-profit educational institutions to compete, or whether it helps
them to compete unfairly. non-profit educational institutions, it must
be remembered, comprise a class that includes numerous major public and
private higher education entities that are supported by various
combinations of substantial taxpayer funding, alumni donations, tuition
payments, and corporate or foundation grants, as well as income from
patent and other property rights. For many, if not most, of these
institutions, retention of the ``non-profit'' requirement in the
revised exemption is not needed to permit them to compete with for-
profit institutions of higher education or other for-profit providers
of online education programs. It may, in fact, simply provide them with
an unfair competitive advantage over such competitors.
Similarly, with respect to non-profit elementary and secondary
education institutions, it is not clear why they would ``need'' the
exemption to compete, since this class consists predominantly of
public, tax-supported schools which are not currently facing any
substantial competition from for-profit entities. If, however, the
advent of charter schools, tuition voucher policies, and the like were
to produce such competition from for-profit entities, retention of the
``non-profit'' requirement for the revised copyright exemption might
nevertheless be viewed as giving the non-profit institutions an unfair
competitive advantage with respect to the use of copyrighted works in
the provision of online education programs.
Hence, the quandary in limiting eligibility for the revised
exemption to ``non-profit educational institutions''--while it is
difficult to justify a government mandate that would allow for-profit
educational institutions to freely ride on the investments of copyright
owners (including other for-profit providers), it is clear that
establishing the revised exemption for the benefit of ``non-profit''
educational institutions is, for many such entities, an unnecessary and
unfair advantage in a competitive marketplace that has made the
distinction between ``non-profit'' and ``for-profit'' providers largely
irrelevant.
Question 3: The bill contains safeguards to minimize the risk to
copyright holders that the use of works under the expanded exemption
could result in copyright piracy. Among those safeguards is a provision
requiring the school to use ``technological measures that reasonably''
prevent unauthorized access and dissemination. Could you describe the
technological measures that copyright owners are using todgy to
minimize the risk of unauthorized downstream use of copyrighted works
in distance learning programs?
Answer: 3: Less than two years have passed since the Register of
Copyrights issued the ``Report on Copyright and Digital Distance
Education,'' including the legislative recommendations on which S.
487's proposed revision of Section 110(2) of the Copyright Act is
based. Although the DMCA debates and the compression of events in
``Internet time'' might have led many people to expect extraordinary
developments from copyright owners in the design and deployment of
``technological measures'' during this period, the description of
``Technologies To Protect Content'' in the Register's Report (p.57-67)
remains largely accurate and current--at least with respect to the
publishing industry--in its survey of extant uses of technologies to
control unauthorized downstream use of copyrighted works in online
education programs.
Secure digital containers and proprietary viewers, encryption,
streaming formats, and digital watermarking continue to be the leading
options available to copyright owners, with new variations on these
themes emerging as part of the development of commercially-viable ``e-
book'' presentation and delivery mechanisms. Much of what is occurring
in these areas, however, is considered proprietary and confidential. As
a result, there is little detail on the public record to document or
explain current developments.
Question 4: Some copyright owners have argued that distance
learning is flourishing and that expanding the scope of the exemption
provided in section 110(2) may interfere with the primary market of
educational publishers, if distance educators can get this material for
free under the exemption. The bill expressly removes from the coverage
of the exemption ``work produced primarily for instructional use''
since we want educational publishers to have the incentive to invest in
and publish innovative educational materials that copyright protection
can provide. Do you see any risk to publishers of educational materials
from expansion of the distance education exemption in the limited
fashion posed in the TEACH Act?
Answer: 4: For AAP, one of the most important provisions in S. 487
as introduced was the bill's exclusion of works ``produced primarily
for instructional use'' from the scope of the proposed revised Section
110(2) exemption. Commercial educational publishers in particular were
relieved to see that the cosponsors of the legislation understood and
agreed with the concern expressed by the Register of Copyrights that
application of the exemption to such works ``could significantly cut
into primary markets, impairing incentives to create.''
AAP believes that this exclusion is not only necessary to the
continued viability of primary educational publishing markets in the
U.S., but also necessary to ensure that the revised exemption does not
run afoul of U.S. obligations under international copyright agreements
that protect the interests of educational publishers in markets abroad.
For example, Article 13 of the TRIPS Agreement, which incorporates and
extends the substantive obligations of the Berne Convention, states
that ``Members shall confine limitations or exceptions to exclusive
rights to certain special cases which do not conflict with a normal
exploitation of the work and do not unreasonably prejudice the
legitimate interests of the right holder.'' This obligation is also
endorsed in the WIPO Copyright Treaty, which updates and supplements
Beme and TRIPS with respect to their application in the digital
environment. Without the exclusion, AAP believes the proposed revised
exemption would violate these international agreements.
For these reasons, AAP also believes that the exclusion from the
exemption of works ``produced primarily for instructional use'' should
not be limited, conditioned or qualified in any way, including by
carve-outs which would make use of certain instructional works or
limited portions of such works explicitly subject to the exemption. In
this vein, we note our concern regarding the hearing testimony of
Gerald A. Heeger on behalf of the Association of American Universities,
the American Council on Education, the National Association of State
Universities and Land-Grant Colleges, and the Association of Research
Libraries. Mr. Heeger specifically urged that ``instructional
audiovisual materials'' should fall within the scope of the exemption,
but he argued more generally that ``[i]nstructional materials often
will be essential to effectively harmonizing the content of local and
remote instruction.'' In that context, Mr. Heeger's request regarding
audiovisual materials is likely to become the proverbial ``camel's nose
under the tent,'' and there will be no logical place to draw the line
on further carve-outs if this one is accepted. Following this path
could broaden the exemption to the point where it becomes the basis for
creating ``electronic coursepacks'' or so-called ``e-reserve''
collections, neither of which could be justified by the Register's
statements in support of a limited revised exemption.
Question 5: To encourage the use of the Internet in distance
learning, the TEACH Act would expand the distance education exemption
in current law to permit the reproduction and distribution of
copyrighted works to the extent technically necessary to transmit the
work otherwise covered by the exemption. These copies are not to be
retained any longer than necessary to complete the transmission and, if
they are, the exemption will no longer apply. Educational institutions
have raised a concern over caching, which is an automatic storage of a
copy in an Internet Service Provider's server or a user's browser to
make the Internet run more quickly. The school doing the transmitting
of a copyrighted work under the exemption may have no knowledge of or
control over the caching of copies of the work, even though such
caching might result in potential liability for the school. T3Should
additional language be added to the bill to make clear that such
automatic caching would be covered by the expanded exemption and, if
so, what language would you suggest?
Answer: 5: It would appear to AAP that the described concern
regarding potential liability of transmitting educational institutions
for cache copies in an ISP's server or a user's browser does not arise
at all to the extent that, in the circumstances of a particular online
education program, the institution is acting as an ISP and qualifies
for the liability limitations contained in Section 512 of the Copyright
Act, as amended by the DMCA. Given the myriad variations in the ways in
which such programs may be produced and delivered to or accessed by
students, we recognize that sometimes this situation will exist and
sometimes it will not. However, this leads us to inquire why, in cases
where the institution is not acting as an ISP as defined in Section
512, or is acting as an ISP which does not qualify for the liability
limitations under Section 512, the institution should be entitled to
special treatment under the law regarding its potential liability.
Assuming without certainty that the examples of cached copies
offered to illustrate the indicated concern have been validly
characterized in technological terms, it would appear to AAP that there
is no valid reason to prescribe special treatment for such
institutions.
In the case where the transmitting institution is not acting as an
ISP, it would appear to have no potential liability arising from such
copies because, as stipulated in the testimony of the Register of
Copyrights and in the related question framed above, apart from
initiating the transmission, the transmitting institution would have
had no role in the making and retention of such copies, no actual
knowledge or reason to believe that such copies were being made, and no
ability to prevent them from being made. Under such circumstances, it
is difficult to understand under what theory of copyright liability the
transmitting institution would be potentially liable.
But in the case where the transmitting is acting as an ISP but
either acts or fails to act in a manner that disqualifies it from
eligibility for the liability limitations provided in Section 512, it
is clear that certain theories of liability may apply, yet it is
unclear to AAP why the transmitting institution should categorically be
immunized from any theory of legal responsibility for such copies
simply because it is engaged in the provision of online educational
programs. It may, perhaps, be reasonable to provide some special
conditional limitation on the institution's potential liability for
direct infringement in such cases, provided that the conditions to be
satisfied are parallel to those prescribed in the appropriately
analogous provisions of Section 512 (depending on the circumstances in
which the copies were made). However, given the very real potential for
further unauthorized uses of the transmission and its included
copyrighted work to occur as the result of the creation of these
copies, it is difficult to conceive why the usual criteria for
secondary liability under theories of contributory infringement or
vicarious liability should not be applicable to the transmitting
institution if such unauthorized uses in fact occur.
Question 6: Both the Copyright Office report and the report of the
Web-Based Education Commission headed by Senator Bob Kerrey noted that
educational institutions have difficulty with licensing for digital
distance education. Even after schools determine who the copyright
owner is, they often face delays in locating the owner, obtaining
permission and then may incur substantial costs. The TEACH Act proposes
a study by the Copyright Office on the licensing problems encountered
by schools. Are there any steps being taken by schools or copybright
owners to make the licensing process easier to understand and to
pursue?
Answer: 6: The written testimony submitted by AAP for the
Committee's hearing on 5.487 contained examples of recent actions that
show how publishers are attempting to make the licensing process easier
to understand and to pursue. These examples, excerpted for your
convenience below, bear out the Register's prediction that such
problems will continue to be addressed as the marketplace evolves and
matures. For example:
Houghton Mifflin's College Division has upgraded its
Permissions Department's website so customers can submit permission
requests by using online ``fill-in-the-blank'' forms or downloading PDF
templates to fill out and submit by fax. At the same time, the College
Division is conducting a pilot program with Copyright Direct, a
permissions tool of Yankee Rights Management that permits users to
obtain real-time permissions online. The College Division is also
working with Reciprocal, a ``secure system'' provider for granting and
holding permissions, which also provides ``secure containers'' that
permit rights and permissions information to be carried online with the
content to which its relates.
Pearson Education's Prentice Hall subsidiary has
established a ``Companion Website Gallery'' which provides descriptions
and links for an array of textbook-supporting websites that correlate
additional learning activities with specific college textbooks. In
addition, like several other AAP members, it has contracted with
NetLibrary, an online provider of e-books, to make some of its college
texts available for online access with full-text search capabilities.
Computer Curriculum Corporation, a separate division of Pearson
Education, also offers CCC Destinations Internet, a comprehensive
online learning program that permits remote delivery of customized,
essential skills education for adolescent and adult learners in
community colleges, correctional education programs, and public housing
education programs.
Elsevier Science has established ScienceDirect, an online
current awareness service with a ``click-through'' license that allows
institutional subscribers to their print journals to have free remote
online access to the most recent twelve months of journal issues on a
rolling basis. If the subscriber allows all or selected members of the
public to access its collections, the license allows such persons to
access the journals online from workstations in the institutional
facility.
Thomson Learning's Global Rights Group has established a
website for online evaluation and disposition of permission requests
for all Thomson Learning Higher Education and Lifelong Learning
companies. The website cannot be used to order and purchase materials,
but provides for the use of online permission request forms and a
``Lookup'' status check button for all materials produced by Thomson
Learning's ten higher education companies.
Harcourt College Publishers, one of Harcourt General's
higher education companies, has established an Online Learning Center
that utilizes the WebCT platform to deliver courses customized by
instructors to accompany many of its main textbooks. Its Custom
Publishing operation allows instructors to request modifications to the
company's own products, including removal of excess chapters, addition
of instructor materials, institutional personalization, and the
combination of several products into one. Archipelago Productions,
another Harcourt higher education company, which develops multimedia
courseware for distance and distributed learning, has announced
alliances with WebCT and Blackboard, Inc., both well-known providers of
online education platforms, to deliver Archipelago's Online Courses in
a hybrid ``netCD'' environment that leverages CD-ROM and Internet
technologies to feature the presentation benefits of CD-ROMs and the
interactivity of Web browsers embedded into the disks.
Wiley InterScience is an online journals service through
which John Wiley & Sons, a leading scientific publisher, allows all
users to browse and search Tables of Contents of all of its journals
online, and obtain online access to abstracts for all of its titles.
Depending on the type of subscriber, the service can also offer online
access to the full text of all subscribed journals.
In a recent follow-up with Houghton Mifflin, we learned that last
year the College Division processed 122 requests to post HM materials
to intranets and passwordprotected Internet pages, and to digitize
audio or video ancillary materials. Most of these were academic
requests (i.e., from instructors, campus language labs, and libraries),
which were all granted. Comparing this with 76 such requests received
in 1999 and 56 such requests received in 1998, it seems clear that the
publisher's efforts to improve the handling of such requests has thus
far kept pace with the increase in the number of such requests.
Overall, the Division's Permissions Web Page has become the pipeline
for all sorts of permissions requests, involving both print and non-
print uses. Customers continue to use e-mail forms to make their
requests (up 75% from the previous year), as well as downloadable pdf
forms to make their requests by fax.
It is also AAP's understanding that the website of the National
Association of College Stores (``NACS '') has recently added ``digital
distribution'' to their downloadable sample permissions request form,
facilitating more rapid submissions of complete and accurate
permissions requests.
Of course, many educational publishers continue to make an
increasingly diverse array of digital content available on line for
customized use by instructors. For example, Pearson's Higher Education
Division has partnered with a leading ``e-learning'' infrastructure
company to create and release ``CourseCompass''--a nationally-hosted
Web-based e-learning platform which enables educators to easily
customize extensive content offerings from Pearson and integrate them
with their own materials. Pearson Education has undertaken a similar
venture with another technology partner to deliver an online teaching
and professional development platform to teachers for elementary and
secondary schools.
Question 7: The bill requires the educational institution to limit
reception of an exempted transmission to enrolled students or
government employees ``to the extent technologically feasible.'' In
addition, the bill requires the educational institution to apply
technological measures ``that reasonably prevent unauthorized access''
to the work.
(a) Would the fact that these requirements are not identical to
each other pose a problem for educational institutions to comply or are
the requirements complementary?
Answer: 7(a): The requirements of the two provisions are somewhat
overlapping due to the fact that ``reception'' of the transmission in
this context would presumably provide ``access'' to the copyrighted
work performed or displayed therein, even if decryption was required to
facilitate such reception. (A different view might apply if the
performance or display were somehow separately encrypted within the
otherwise unencrypted transmission and thus required a separate step
apart from ``reception'' of the transmission to actually provide
``access'' to the performance or display of the work.). However, the
requirements may be distinguished by virtue of the fact that the latter
requirement is an obligation explicitly imposed on ``the transmitting
body or institution'' while the former requirement characterizes the
transmission itself, rather than any explicit duty of ``the
transmitting body or institution.'' Moreover, since the latter
provision addresses unauthorized postaccess uses of the work, as well
as unauthorized access to the work, the two provisions could be viewed
as intended to address distinct concerns. AAP believes it is
appropriate to separately treat the need to limit reception of the
transmission and access to the copyrighted works embodied therein, on
the one hand, and the need to prevent unauthorized post-access uses of
such works, on the other, but urges that the standards be harmonized as
explicit obligations of the ``transmitting body or institution.''
Moreover, in harmonizing the provisions, AAP believes it would be
appropriate and advisable to apply the same ``technologically
feasible'' standard to both categories of concern. Requiring that
unauthorized access and dissemination must be achieved ``to the extent
technologically feasible'' is, in our view, a higher and more objective
standard than requiring that such conduct must be ``reasonably
prevent[ed]'' because, unless ``reasonably'' in the latter context is
explicitly understood to mean ``to the extent technologically
feasible,'' the standard would permit the requirement to be met through
use of technological measures that are known to be less effective than
available alternatives, since all that would be required is that they
``reasonably'' prevent such occurrences, rather than prevent them
altogether. While we understand that no technological measure can be
absolutely guaranteed to withstand circumvention efforts and be
effective in all instances, there is no reason why the ``transmitting
body or institution'' should not be required to use the most effective
technological measures available, rather than permitted to use
alternatives that are merely ``reasonably'' effective.
(b) Do you believe these requirements would impose any obligation
on educational institutions to use technology to prevent students from
freely downloading the materials transmitted?
Answer: 7(b): Absolutely, and we believe they should be obligated
to do so in order to maintain the balance of user and copyright owner
interests that Congress built into the existing exemption. Nothing in
the current language of Section 110(2) authorizes students to make
copies of the instructional broadcasts authorized under this exemption;
to the extent that any copies of such transmissions are authorized to
be made under the current language of Section 112(b), it is the
governmental body or non-profit educational institution entitled to
transmit the performance or display under Section 110(2) that is
authorized to make the copies, not the recipients of the transmission.
Similarly, nothing in the proposed revised exemption should permit the
students or government employees who can receive or access the
transmission embodying the exempt performance or display to freely
download the materials in question and open them up to further
unauthorized reproduction, distribution or other use. To clarify this
matter, AAP believes that the term ``dissemination'' should be replaced
by the phrase ``reproduction, distribution or other use.''
(c) What degree of protection would be ``reasonable''?
Answer: 7(c): As noted above, if the qualifying term ``reasonably''
is to be retained as part of the provision describing the obligation of
the transmitting body or institution to apply technological measures,
it should be explicitly defined to mean ``to the extent technologically
feasible.'' Moreover, however the phrase ``technologically feasible''
is ultimately used in either or both of the above-referenced
provisions, it should clearly be understood to refer to ``feasibility''
in terms of the state-of-the-art technological capabilities available
in the marketplace, not in terms of the capabilities of the technology
already used by the transmitting body or institution. In other words,
the limits of technological feasibility should be based on what is
available in the market, not merely on what will work with the
equipment or facilities used by the transmitting body or institution.
There is no justification for making the copyright owner assume the
risk of inadequate technological measures simply because the
transmitting body or institution has failed to keep up with the state-
of-the art in the technology used to make the transmission.
Question 8: It has been almost two years since the Copyright Office
issued its report on distance learning and made its legislative
recommendations. Are there any new developments, new concerns or
significant advances in technology that would affect any part of the
analysis in that report?
Answer: 8:
With respect to developments in technology, see our response to Q3
above.
With respect to other new developments and concerns since the
issuance of the Register's Report, AAP reiterates and urges the
Committee to carefully consider the issues raised in our written
submission for the Committee's hearing: At present, no one really knows
the costs or other burdens involved in implementing the ``technological
measures'' requirement in the proposed revised exemption. But, even if
the necessary technological safeguards were widely-available in ``a
convenient and affordable form'' in today's market, copyright owners
have, in the period since the issuance of the Register's Report,
acquired some legitimate reasons to entertain doubts about the
willingness of public institutions of higher education--the most
significant class of ``non-profit educational institutions'' offering
online distance education programs--to take on the full costs and
responsibility of good-faith compliance in their implementation.
Some of these reasons are based on the fact that the Napster
phenomenon, which two federal courts have enjoined as fostering ongoing
instances of blatant copyright infringement on an unprecedented mass
scale, has been chiefly pursued by students using campus-based Internet
access and computer networks. Although universities and colleges were
not themselves perpetrators of the infringing music-swapping activity,
their failure to act in some cases to block student access to Napster's
server contributed substantially to the magnitude of the problem. Many
of these institutions continue to express ambivalence regarding their
obligations or abilities to deal with ``the technical, legal, and moral
issues raised by Napster and other file-sharing, bandwidth clogging,
copyrightchallenging programs.'' See, e.g., Carlson, Scott, ``Get Ready
for an Encore of the Napster Controversy, `` The Chronicle of Higher
Education, September 8, 2000, p.A51.
Others reasons may be based on the evident antagonism that
representatives of the higher education community demonstrated toward
legal prohibitions against circumventing certain kinds of technological
measures in hearings held by the Copyright Office last year for the so-
called ``Section 1201 anticircumvention rulemaking'' conducted by the
Librarian of Congress. Although their request to legalize circumvention
of access controls with respect to maps, newspapers, databases,
textbooks, scholarly journals, academic monographs and treatises, law
reports and educational audio/visual works was rejected by the
Librarian, at the recommendation of the Copyright Office, it is notable
for the disturbingly narrow view it represents regarding the legitimate
right of copyright owners to use technological measures to control
access to copyrighted works. See Library of Congress, Final Rule:
Exemption to Prohibition on Circumvention of Copyright Protection
Systems for Access Control Technologies, 65 Fed. Reg. 64555 (daily ed.
October 27, 2000.)
Still other reasons may be found on the fear that recent rulings by
the U.S. Supreme Court and the Fifth Circuit U.S. Court of Appeals,
which have barred lawsuits for damages against State entities for
violations of federal statutory rights, have eliminated the primary
incentive for public educational institutions to comply with legal
standards that protect the rights of copyright owners. See, e.g.,
Department of Commerce Patent and Trademark Office, Notice of
Conference on State Sovereign Immunity and Intellectual Property
Rights, 65 Fed. Reg. 11987 (daily ed. March 7, 2000).
These developments, separately and in combination, should be
evaluated by the Committee to realistically assess the likelihood of
full good-faith compliance by non-profit educational institutions with
``technological measures'' requirements imposed by the legislation at
issue.
Question 9: The Copyright Office report noted that access control
measures to copyrighted works, such as passwords, were already in
widespread use, but technologies that control post-access uses for all
types of works were not widely available. Are technical measures now
more readily available to control post-access distribution of works
and, if so, please describe those that are available?
Answer: 9: See response to Q3 above.
Response of Allan Robert Adler to a question from Senator Blanche L.
Lincoln submitted on her behalf by Senator Leahy
Question: I believe visually impaired students should have access
to the same educational opportunities that are available to sighted
students. Unfortunately, many blind students are denied equal access to
instructional materials today because the process of converting
textbooks for use by the blind can be costly and time consuming.
According to constituents I've met with regarding this issue, some non-
sighted students must wait up to 6 months to receive required classroom
materials that are made available to sighted students on the first day
of class.
Mr. Adler, can you describe what steers publishers have taken or
plan to take to make textbooks and other instructional materials
available to non-sighted students in a timely manner? Also, does the
Association of American Publishers recommend any federal legislative
changes that would facilitate the availability of required classroom
materials for the blind?
Answer: In recent years, under the direction of our President and
CEO Pat Schroeder, AAP has worked closely with the leading blind
advocacy groups to address problems encountered by blind and other
persons with disabilities in gaining access to books and other printed
materials in specialized formats for their use. Perhaps the best-known
example of our successful collaboration with these groups is a
provision in the Copyright Act that allows previously-published
nondramatic literary works to be reproduced and distributed in
specialized formats for blind and other persons with disabilities
without the need to obtain permission from the copyright holder.
Popularly known as the Chafee Amendment, this 1996 addition to
copyright law has eliminated a substantial practical hurdle to ensuring
that instructional materials and many other print works can be made
available to blind and other persons with disabilities in the
specialized formats they require.
During the past year, we have been working with the blind advocacy
groups to draft federal legislation which would replace a patchwork
quilt of State legislation addressing various issues regarding how
textbooks and other instructional materials are provided by publishers
to local educational agencies in electronic file formats suitable for
efficient conversion into specialized formats for blind and other
persons with disabilities. The purpose of the federal legislation would
be to prescribe uniform national standards and procedures for the
provision of such electronic files for conversion into specialized
formats in order to achieve the goal of ensuring that blind and other
children with disabilities in elementary and secondary schools will
have their assigned textbooks and other instructional materials
available to them in specialized formats at the same time as the
regular printed versions of these materials are provided to their
classmates.
The effort has been complicated by the number and nature of issues
to be addressed, but all parties have continued to work closely with
good faith efforts. The issues include (1) defining the kind of
instructional materials that will be subject to the legislation; (2)
calculating a quick but workable timeframe for the publisher's
provision of the electronic files to the responsible state officials
after receiving notice of their request for such files in connection
with specific materials required for students in particular classes;
(3) establishing plans for a national repository to which such files
can be sent to remain on deposit for use by educational officials in
different states as required; (4) devising a technical standard-setting
proceeding to combine the publishing industry's evolving practices with
the practical needs of the persons who convert works into Braille and
other specialized formats in order to establish a national standard
format for these electronic files; and, (5) addressing the needs of
conversion personnel for funding and training to be able to take
advantage of the national standard format (likely to be XML-based) when
the transition period for its adoption has run.
As you know, crafting federal legislation to preempt existing State
laws is always a very delicate task, and the effort to reach consensus
before moving the issue to the Hill has been a conscious and deliberate
plan of all parties involved. Each of the issues highlighted above
presents its own problems for resolving current differences among the
States, half of which have specific requirements on these matters and
half of which do not.
AAP would be delighted to further brief you and your staff on the
status of these current efforts at your convenience.
Responses of Gary Carpentier to questions submitted by Senator Leahy
Question 1: The TEACH Act does not change the limitation in current
law applying the distance education exemption in section 110(2) only to
``non-Profit'' educational institutions. For-profit educational
institutions have never qualified for the exemption. The Copyright
Office and content owners have raised a legitimate question about
whether ``non-profit'' is an appropriate qualifier since some ``non-
profit'' institutions may not be bona fide educational institutions.
Should the requirement that the educational institution be
``accredited'' before it is able to qualify for the exemption be added?
Answer: The concept of accreditation, seems to me, to be a more
valid and appropriate qualifier to allow a learning institution,
whether ``non-profit'' or ``bona fide for-profit,'' to be granted an
exemption. Accreditation is an easier, more useful criterion that can
be implemented to make this legislation work. It is my opinion that the
term ``accredited, bona fide educational institution'' should replace
``non-profit educational institution'' in the current law and any
future legislation.
Question 2: Many sponsors of distance education programs are not
purely ``non-profit.'' Some non-profit schools have begun to engage in
distance education for profit, some commercial entities are forming
partnerships with non-profit institutions to offer distance education,
and some commercial textbook publishers, like Harcourt General, want to
provide full-service distance education programs for accredited college
degrees directly. Competition between non-profit and for-profit
distance learning programs is good for the country. Do you think that
retaining the non-profit requirement in current law helps non-profit
educational institutions compete?
Answer: I think that the ``non-profit'' requirement in current law
does not help non-profit educational institutions compete. At this
time, these educational institutions have an advantage to be part of
the system merely because they represent or might provide a large group
potential end-users of distance education. By retaining the ``non-
profit requirement'' in current law, innovation is stymied. For
educational institutions to truly become participants in the distance
education market, all barriers to entry must be removed and the playing
field leveled. The market will determine winners and losers.
Question 3: The bill contains safeguards to minimize the risk to
copyright holders that the use those safeguards is a provision
requiring the school, to use ``technological measures that reasonably
[sic]'' to prevent unauthorized access and dissemination. Could you
describe the technological measures that copyright owners are using
today to minimize the risk of unauthorized downstream use of
copyrighted works in distance learning programs?
Answer: There are dozens of ``Digital Rights Management'' (``DRM
'') solutions available to fight copyright piracy. A survey of DRM
solutions show that:
The core element of the DRM architecture operates on PCs and
servers. DRM processing acts as a secure `virtual system' that can
manage each parties' digital rights remotely. Each local, secure
database stores the user's rights, identities, transactions, budgets,
and keys.
Protected information in the system is encrypted and stored in a
secured file. Once in a secured file, the information can flow across
unsecured networks, and only a user satisfying the required rules can
access and process the information. Information in a secured file
remains protected even after a user has accessed it, providing
persistent protection of the information and continuing control over
its use, regardless of where the information travels.
Content usage is managed by rules, including price, payment offer,
play, view, print, copy, save, super-distribution, and others. Many
``solutions'' provide a variety of tools for allowing providers to
create and change rules, and associate them with digital information.
Rules are protected in the same way content is protected. As with
content, rules are stored in secured files for distribution. Rules can
travel with the information, or separately, allowing copyright holders
the flexibility to change any rule, including rights or price, after
content has been delivered. An architectural system such as this
ensures that applicable rules are followed every time an information
usage `event' is requested.
Question 4: Some copyright owners have argued that distance
learning is flourishing and that expanding the scope of the exemption
provided in section 110(2) may interfere with the primary market of
educational publishers, if distance educators can get this material for
free under the exemption. The bill expressly removes from the coverage
of the exemption ``work produced primarily for instructional use''
since we want educational publishers to have the incentive to invest in
and publish innovative educational materials that copyright protection
can provide. Do you see any risk to publishers of educational materials
from expansion of the distance education exemption in the limited
fashion proposed in the TEACH Act?
Answer: No, the reward to educational publishers far outweighs the
risk mentioned. Despite copyright owner arguments that ``distance
learning is flourishing,'' quite the opposite is true. Distance
education business models reflect enormous frontend capital
requirements to create and maintain operations in the early stages of
initial trial and adoption. Without the content available to educators
and endusers, distance education providers will be further ham-strung.
A more reasonable approach to consider might be to limit the amount of
content from ``work produced primarily for instructional use'' that may
be covered under the exemption. That may satisfy all concerned parties.
Question 5: To encourage the use of the Internet in distance
learning, the TEACH Act would expand the distance education exemption
in current law to permit the reproduction and distribution of
copyrighted works to the extent technically necessary to transmit the
otherwise covered by the exemption. These copies are not to be retained
any longer than necessary to complete the transmission and, if they
are, the exemption will no longer apply. Educational institutions have
raised a concern over caching, which is an automatic storage of a copy
in an Internet Service Provider's server or a user's browser to make
the Internet run more quickly. The school doing the transmitting of a
copyrighted work under the exemption may have no knowledge of or
control over the caching of copies of the work, even though such
caching might result in potential liability for the school. Should
additional language be added to the bill to make clear that such
automatic caching would be covered by the expanded exemption and, if
so, what language would you suggest?
Answer: If appropriate Digital Rights Management protections are
put in place on the content transmitted, the notion of protection of
cached content residing on remote servers will be moot.
Question 6: Both the Copyright Office report and the report of the
Web-Based Education Commission headed by Senator Bob Kerrey noted that
educational institutions have difficulty with licensing for digital
distance education. Even after schools determine who the copyright
owner is, they often face delays in locating the owner, obtaining
permission and then may incur substantial costs. The TEACH Act proposes
a study by the Copyright Office on the licensing problems encountered
by schools. Are there any steps being taken by schools or copyright
owners to make the licensing process easier to understand and pursue?
Answer: Not that I am aware of. Currently, the educational
institution requires the Professor or instructor to personally obtain
any and all copyright permission for content incorporated in his or her
course. Some institutions pursue the purchase of an ``educational use
license'' from publishers or copyright holders and others pursue the
option of purchasing a ``blanket license'' from copyright management
organizations.
Question 7: The bill requires the educational institution to limit
reception of an exempted transmission to enrolled students or
government employees ``to the extent technologically feasible.'' In
addition, the bill requires the educational institution to apply
technological measures ``that reasonably prevent unauthorized access''
to the work.
Question (a): Would the fact that these requirements are not
identical to each other pose a problem for educational institutions to
comply or are the requirements complementary?
Answer: These requirements are complementary. As mentioned above,
there are dozens of Digital Rights Management solutions available to
copyright holders that will solve this problem for them as well as the
educational institutions.
Question (b): Do you believe these requirements would impose any
obligation on educational institutions to use technology to prevent
students from freely downloading the materials transmitted?
Answer: Possibly. The proposed legislation requires that end-users
of the content transmitted be authorized users and enrolled in a course
at the institution. So naturally, there is an interface between the
originator of the content, the Professor or instructor who desires to
use the content in a course, the educational or governmental
institution which provides the names of the enrolled end-users and the
actual Internet Service Provider which transmits the content to the
end-user. It is the obligation of the institution to manage the set of
end-users authorized to receive the content. This includes authorizing
students/employees as well as denying access. There are many existing
technologies that can ``reasonably prevent unauthorized access'' to
content transmitted over the Internet.
Question (c): What degree of protection would be ``reasonable''?
Answer: Complete protection is ``reasonably'' and entirely
obtainable.
Responses of Gerald Heeger to questions submitted by Senator Leahy
Questions 1 and 2: Raise related issues, question 1 asking whether
accreditation should be added to non-profit status as a qualifying
condition for the exemption, question 2 asking whether retaining the
non-profit requirement aids nonprofit institutions in competition with
for-profit institutions. We would like to address the questions raised
in these two issues as follows:
The principal objective of the distance education exemption should
be to enhance the breadth and quality of distance education content. To
the extent that accreditation can effectively identify institutions or
programs that deliver quality educational content, it is reasonable to
argue that any accredited institution, whether non-profit or for-
profit, should be eligible for the distance education exemption. The
U.S. accreditation system includes regional and national accreditation
agencies recognized by the Council on Higher Education Accreditation
and the U.S. Department of Education.\1\ Accreditation by these
recognized accrediting agencies would provide reasonable assurance that
the distance education exemption is used by legitimate educational
institutions and programs for the purposes intended in law.
Accreditation of an institution cannot guarantee that an institution
will use distance education materials appropriately but would provide
additional assurance of appropriate use that would be a useful addition
to the other safeguards already included in S. 487. Since the U.S.
accreditation system accredits both non-profit and for-profit
institutions, there does not seem to be a compelling reason to limit
the distance education exemption to non-profit institutions.
---------------------------------------------------------------------------
\1\ The CHEA-USDA recognition system is critical. A number of non-
recognized accreditation agencies exist to ``accredit'' diploma mills;
neither these agencies nor the institutions they accredit should be
included in a distance education exemption.
Questions 3: The question asks what technological protections
copyright owners are employing to protect against unauthorized
downstream redistribution of copyrighted works. Although a great deal
of work is underway to develop such technology, we are not aware of
widely available, effective technologies to control downstream
redistribution. Colleges and universities are using a number of
technological protections such as PIN numbers and passwords to control
online access to copyrighted material and will certainly use
technological protections that are reasonably available and affordable
to control downstream uses of copyrighted works once such protections
are developed.
However, technological protections that control downstream uses of
copyrighted works are only one category of protection of copyrighted
works in S. 487. Access controls, which, as noted above, colleges and
universities already employ, as well as portion limitations, mediated
instruction, and limiting the retention of temporary copies provide
substantial protection against the misuse of copyrighted material.
Therefore, we suggest that the language of S. 487 concerning the
use of technological protection measures that reasonably protect
against unauthorized downstream redistribution be qualified to obligate
institutions to employ such protections that are ``technologically
feasible and economically reasonable.'' Currently, such protections are
not available, and we do not believe that unavailability should freeze
the deployment of online distance education. When such technologies do
become available, they must be available on terms that allow
institutions to implement them effectively: one could imagine the
development of a technology that provided protection against downstream
uses but was so prohibitively expensive that it was effectively out of
reach of all institutions.
Question 4: This question asks whether S. 487, with its several
safeguards, poses a threat to publishers of educational materials.
Since S. 487 would require the use of lawfully made and acquired
material,\2\ we believe that there is no credible threat to the market
for publishers of educational materials. Indeed, we believe that the
educational materials market will expand if S. 487 is enacted into law,
because such a law will enable more institutions to expand their online
offerings, thereby expanding the educational market. Moreover, because
of the inclusion in S. 487 of requirements for using only lawfully made
and acquired materials, in addition to the inclusions of the other
safeguards such as portion limitations noted above, we believe that the
exemption should include, rather than exclude, instructional works.
Given the requirements and safeguards included in the bill, the risks
to educational publishers are minimal, but the educational consequences
of exclusions of instructional materials would be substantial. A risk-
benefit analysis would therefore strongly favor inclusion of
instructional works in the exemption provided in S. 487.
---------------------------------------------------------------------------
\2\ Section 110(1) currently requires only that material used for
classroom performance or display be lawfully made. The addition in S.
487 of ``lawfully acquired'' therefore constitutes an added requirement
but is one that we would find acceptable.
Question 5: This question asks whether additional language needs to
be added to deal with automatic caching. The educational community is
concerned with several aspects of the limitations on the reproduction
right, and believe that several changes in S. 487 are warranted to
conform with the technical realities of the Internet and to ensure that
institutions do not lose the benefit of the exemption as a result of
activity beyond their reasonable control.
First, we believe that the reference to ``transient'' copies should
be changed to refer to ``temporary copies'' in order to conform to the
way in which those terms were used in the DMCA. In section 512 of the
Copyright Act, enacted as part of the DMCA, Congress differentiated
between ``transient'' and ``temporary'' copies. The term ``transient''
was used to describe router copies or other ``conduit'' copies. See
Sec. 512(a). The term ``temporary'' was used to describe server
caching, among other copies of somewhat longer duration. See
Sec. 512(b). Cached copies, as well as copies made by the receiving
students' browser software, are typically beyond the control of the
originating institution. An institution should not lose the exemption
if such copies are made.
Further, the bill would limit such copies ``to the extent
technologically necessary to transmit the performance or display.'' It
has been argued that caching, though important for Internet efficiency,
is not strictly ``necessary'' for the completion of a transmission. The
bill should not impose this limitation, which could be read to preclude
cached copies.
Finally, subparagraph (D) would require that ``any transient copies
are retained for no longer than reasonably necessary to complete the
transmission.'' This language raises three issues. First, it uses the
term ``transient'' rather than ``temporary.'' Second, it again
interposes a requirement of ``necessity,'' which may or may not be
strictly satisfied by caching. Third, it subjects an institution to
potential liability for retention of material often beyond its
reasonable control.
We suggest that the following be substituted for subparagraph (D):
``the transmitting entity does not cause a temporary copy made as part
of the automatic technical process of the digital transmission to be
retained beyond a period that is reasonable in light of the purpose of
the transmission for which a copy is created.''
Question 6: This question asks what steps are being taken to make
the licensing process easier to understand and pursue. Both the higher
education community and copyright owners have taken a number of steps
to try to improve the licensing process. Numerous meetings and
conferences have been held to discuss the problems of licensing, within
the higher education community and between the higher education and
content communities. The Copyright Clearance Center attempts to provide
a ``one-stop shopping'' service for facilitated licensing transactions.
Universities have formed consortia to pursue multi-institutional site
licenses. Although all these efforts have yielded benefits of varying
degrees, licensing remains a problem and will for the foreseeable
future, a point which simply underscores the importance of the
harmonization of the distance education exemption to the digital world
as proposed in S. 487.
Question 7: asks about several aspects of S. 487 language
concerning the use of technological protection measures. The
educational community is concerned about the potential inconsistency of
the requirements of subparagraph (C) and the access requirement of
subparagraph (E)(ii). For example, it is not clear how the provisions
would be construed if access limitations that were technologically
feasible were deemed not to provide a reasonable limitation of access.
Moreover, even if the provisions were fully consistent, we would be
concerned about their apparent redundancy. Courts often start with the
premise that Congress would not have included unnecessary language in
legislation, so that apparently redundant provisions may be
misconstrued in an effort to supply some meaning. Thus, we do not
believe that subparagraph (C) and the access provision of subparagraph
(E)(ii) should both remain in the bill. We believe the requirement is
best expressed in subparagraph (C), requiring a limitation of access to
the extent ``technologically feasible.'' It makes no sense to require
unfeasible technological protection measures.
Further, we believe that a provision limiting the obligation to
restrict access to that which is economically reasonable also is
warranted, and could easily be included by adding the words ``and
economically reasonable'' after the words ``technologically feasible.''
There should not be an obligation to apply access limitations that are
not reasonably available to non-profit educational institutions.
We are not clear on part (b) of question 7 relating to ``freely
downloading'' course materials. Enrolled students must be able to
download the materials used in the course. Downloading is the normal
process by which the materials can be viewed and used. Others will not
have access to the material, as discussed in the preceding paragraph.
Nor do we believe the access control obligations are intended to
prevent downloading. The act that should be prevented, to the extent
reasonable and technologically feasible, is the further dissemination
of downloaded material to others. That obligation is contained in
subparagraph (E)(ii). Our position with respect to such measures is
discussed in response to question 3, above.
We believe access control through the use of password protection, a
widely used method of access control for distance education, is
reasonable.
Responses of Richard M. Siddoway to questions submitted by Senator
Leahy
Question 1: The TEACH Act does not change the limitation in current
law applying the distance education exemption in section 110(2) only to
``non-profit'' educational institutions. For-profit educational
institutions have never qualified for the exemption. The Copyright
Office and content owners have raised a legitimate question about
whether ``non-profit'' is an appropriate qualifier since some ``non-
profit'' institutions may not be bona fide educational institutions.
Should the requirement that the educational institution be
``accredited'' before it is able to qualify for the exemption be added?
Answer: It seems appropriate to me that the institution should be
accredited. I would go further to suggest the accreditation be done by
the appropriate Association of Schools and Colleges. In our geographic
location that is the Northwest Association, but this varies by
geographic location. There are any number of ``accreditations'' that
could be claimed by various institutions, which may not bring any more
validity to the process than status quo.
Question 2: Many sponsors of distance education programs are not
purely ``non-profit.'' Some nonprofit schools have begun to engage in
distance education for profit, some commercial entities am forming
partnerships with nonprofit institutions to offer distance education,
and some commercial textbook publishers, like Harcourt General, want to
provide full-service distance education programs for accredited college
degrees directly. Competition between the non-profit and for-profit
distance learning programs is good for the country. Do you think that
retaining the nonprofit requirement in current law helps non-profit
educational institutions compete?
Answer: Realize that I am speaking for the public K-12 school
community. It appears to me that one reason the fair use provisions
have existed for public schools is because of their free public
education status. Private non-profit schools have enjoyed that same
freedom because of their non-profit status. Both public and private
non-profit schools are working with fixed, limited financial resources.
Unlike public schools whose budgets are controlled by state
legislatures and local board decisions, private schools have the
ability to alter their budgets through increased tuition and fees.
Consequently, I believe the non-profit requirement is an appropriate
restriction.
Question 3: The bill contains safeguards to minimize the risk to
copyright holders that the use of works under the expanded exemption
could result in copyright piracy, Among those safeguards is a provision
requiring the school, to use ``technological measures that reasonably''
prevent unauthorized access and dissemination. Could you describe the
technological measures that copyright owners are using today to
minimize the risk of unauthorized downstream use of copyrighted works
in distance learning programs?
Answer: Again speaking for our particular Electronic High School,
we have three different delivery methods that each has its own
safeguards. Our broadcast television courses (largely concurrent
enrollment, where students earn both college and high school credit)
purchase the copyright releases on any materials that are broadcast.
Printed materials are sent only to registered students as are e-mailed
materials.
Our EDNET courses axe deliverer) over a closed system. The teacher
is in one location and students are in distant locations but located in
an EDNET studio, which gives them access to voice/video/and data
communication. Each distance learning site has a site facilitator who
controls the class and distributes printed materials that have been
transmitted through mail or by e-mail. Only registered students are
allowed in the classes.
Our internet class members enter the classes through password
protection. Only registered members of the class are able to
participate and receive information.
Question 4: Some copyright owners have argued that distance
learning is flourishing and that expanding the scope of the exemption
provided in section 110(2) may interfere with the primary market of
educational publishers, if distance educators can get this material for
free under the exemption. The bill expressly removes from the coverage
of the exemption ``work produced primarily for instructional use''
since we want educational publishers to have the incentive to invest in
and publish innovative educational materials that copyright protection
can provide. Do you see any risk to publishers of educational materials
from expansion of the distance education exemption in the limited
fashion proposed in the TEACH Act?
Answer. No. I don't see a problem. At the present time all of our
internet teachers are avoiding using textbooks and other educationally
published materials because of the copyright restrictions. Instead,
they are looking for web sites that provide similar material and ``hot-
linking'' to them In other words, they are staying away from published
materials because of the currently understood restrictions. If they do
use a textbook in their class, they are having the students acquire
those textbooks either by borrowing from their local school or
purchase.
Question 5: To encourage the use of the Internet in distance
learning, the TEACH Act would expand the distance education exemption
in current law to permit the reproduction and distribution of
copyrighted works to the extent technically necessary to transmit the
work otherwise covered by the exemption,. These copies are not to be
retained any longer than necessary to complete the transmission and, if
they are, the exemption will no longer apply. Educational institutions
have raised a concern over caching, which is an automatic storage of a
copy in an Internet Service Provider's server or a user's browser to
make the Internet run more quickly. The school doing the transmitting
of a copyrighted work under the exemption may have no knowledge of or
control over the caching of copies of the work, even though such
caching might result in potential liability for the school, Should
additional language be added to the bill to make clear that such
automatic caching would be covered by the expanded exemption and, if
so, what language would you suggest?
Answer. At the risk or injecting any even thornier conundrum, let
me suggest that there is a larger problem. The assumption that the
transmission of the material will occur in a restricted bane frame
makes the assumption that the class is synchronous. That is, the
students are all taking the class at the same moment. In the case of
the Electronic High School, we have open entry, open exit of students.
Consequently, we have students distributed through any and all of the
waits in a course at any given moment. In order for a teacher to have
the materials available for students he/she must be able to maintain
the material for an extended period of time sufficient to allow all
students who are registered, at the time the materials are made
available, to complete the unit for which the materials are intended.
However, if the appropriate password protections, or other
technological limitations are placed on students who are taking a
class, this does not seem to be an onerous task.
Question 6: Both the Copyright Office report and the report of the
Web-Based Education Commission headed by Senator Bob Kerrey noted that
educational institutions have difficulty with licensing for digital
distance education. Even after schools determine who the copyright
owner is, they often face delays in locating the owner, obtaining
permission and then may incur substantial costs. The TEACH Act proposes
a study by the Copyright Office on the licensing problems encountered
by schools. Are there any steps being taken by schools or copyright
owners to make the licensing process easier to understand and to
pursue.
Answer. There are data bases that list copyright owners of various
kinds of media. The larger problem often is that there are multiple
copyright owners of motion media materials, (script, music,
choreography, for example). It would be very handy to have a single
clearinghouse of materials.
Question 7: The bill requires the educational institution to limit
reception of an exempted transmission to enrolled students or
government employees ``to the extent technologically feasible.'' in
addition, the bill requires the educational institution to apply
technological measures ``that reasonably prevent unauthorized access''
to the work.
Question (a): Would the fact that these requirements are not
identical to each other pose a problem for educational institutions to
comply or are the requirements complementary?
Answer. They seem to be complementary requirements.
Question (b): Do you believe these requirements would impose any
obligation on educational institutions to use technology to prevent
students from freely downloading the materials.Is transmitted?
Answer. The restriction seems to be on the transmission end, not
the reception end of the process. If the institution has taken
appropriate measures to ensure that only enrolled students are able to
receive the materials, it appears they have met the test of the law.
Question (c): What degree of protection would be ``reasonable'' ?
Answer. If students are able to gain access to the class and its
associated materials through password access, that would seem to be
reasonable. Encoding is becoming more and more affordable, but seems
unnecessary if password protection is in place.
Thank you for the opportunity to testify before the sub-committee.
We appreciate so much the work that Senator Hatch and Senator Leahy are
doing to help us provide high quality educational opportunities through
distance learning.
Richard M. Siddoway
Responses of Marybeth Peters to questions submitted by Senator Leahy
Question 1: The TEACH Act does not change the limitation in current
law applying the distance education exemption in section 110(2) only to
``non-profit'' educational institutions. For-profit educational
institutions have never qualified for the exemption. The Copyright
Office and content owners have raised a legitimate question about
whether ``non-profit'' is an appropriate qualifier since some ``non-
profit'' institutions may not be bona fide educational institutions.
Should the requirement that the educational institution be
``accredited'' before it is able to qualify for the exemption be added?
Answer: We recognize that a ``non-profit'' qualifier is not
sufficient. However, we also have some concern about the use of
accreditation as a criterion, notwithstanding the support it enjoyed at
the time we prepared our Report. One of our concerns is that mandating
accreditation would rule out some institutions that are presently
eligible for the exemption in section 110(2), even for the
instructional broadcasting activities that are covered by the existing
exemption. Another is the multiplicity of accrediting bodies and lack
of uniform national standards for accreditation.
One way around this latter concern could be to establish uniform
national standards for eligibility in lieu of accreditation. These
standards could be developed by the Department of Education and
incorporated into the bill or into regulations under Title 17.
Question 2: Many sponsors of distance education programs are not
purely ``non-profit.'' Some non-profit schools have begun to engage in
distance education for profit, some commercial entities are forming
partnerships with non-profit institutions to offer distance education,
and some commercial textbook publishers, like Harcourt General, want to
provide full service distance education programs for accredited college
degrees directly. Competition between the non-profit and for-profit
distance learning programs is good for the country. Do you think that
retaining the non-profit requirement in current law helps non-profit
educational institutions compete?
Answer: The Copyright Office analysis on the qualifier issue was
based on basic copyright principles. We did not undertake an analysis
based on competitive effects. In our 1999 Report, the Copyright Office
recommended maintaining existing standards of eligibility for the
exemption. At the same time, we acknowledged that the lines between for
profit and non-profit institutions were becoming blurred and that there
was widespread support for requiring accreditation as a condition for
eligibility.
Now, nearly two years later, the lines have blurred even further.
Nonetheless, we still view the non-profit criterion as an appropriate
dividing line, perhaps in conjunction with one or more additional
criteria. (See response to Question 1.)
Question 3: The bill contains safeguards to minimize the risk to
copyright holders that the use of works under the expanded exemption
could result in copyright piracy. Among those safeguards is a provision
requiring the school to use ``technological measures that reasonably''
prevent unauthorized access and dissemination. Could you describe the
technological measures that copyright owners are using today to
minimize the risk of unauthorized downstream use of copyrighted works
in distance learning programs?
Answer: When we prepared our report in 1999, we noted that
technologies to prevent unauthorized downstream copying were under
development, but not yet in widespread use. We are aware of no
significant change in the intervening two years.Q02
Question 4: Some copyright owners have argued that distance
learning is flourishing and that expanding the scope of the exemption
provided in section 110(2) may interfere with the primary market of
educational publishers, if distance educators can get this material for
free under the exemption. The bill expressly removes from the coverage
of the exemption ``work produced primarily for instructional use''
since we want educational publishers to have the incentive to invest in
and publish innovative educational materials that copyright protection
can provide. Do you see any risk to publishers of educational materials
from expansion of the distance education exemption in the limited
fashion proposed in the TEACH Act?
Answer: The Copyright Office believes that the recommendations in
our 1999 Report, as implemented in the bill, represent a balanced
approach that minimizes the risks to educational publishers. The bill,
with one important exception, preserves the same balance struck in the
present copyright law, updating it to account for digital technology.
The principal difference from the balance struck in 1976 is the
addition of categories of works other than nondramatic literary and
musical works. In preparing our recommendations we were persuaded that
expanding the exemption to include other categories of works was
appropriate and necessary to permit distance educators to make the best
pedagogical use of the technology of digital distance education. Rather
than being merely a direct substitute for instructional broadcasting,
digital technology enables a more compelling teaching experience which
often requires the use of multimedia and other materials. However, the
expansion to additional categories of works is balanced by confining
the exemption to performance of ``reasonable and limited portions'' of
such works, and requiring that they be used in the course of an
instructor-mediated class session.
We are aware that some content owners have expressed concern about
the application of the existing exemption from the public display right
to literary works in the context of digital distance education.
Specifically, they are concerned that permitting the display of entire
literary works in the context of digital distance education has a much
greater impact on copyright holders that permitting the display of
entire works for purposes of instructional broadcasting. Congress, in
exempting entire works from the display right in 1976, did not intend
to permit uses that were more extensive that those that were possible
under the technology of the time (e.g., holding up a book for the
camera to see). We believe that the concern of the copyright owners is
addressed through the limitation of permitted displays in amended
section 110(2) (A) to those made ``as an integral part of a class
session.'' Further, it is the view of the Copyright Office that by
specifying that the copy of the work from which the performance or
display is transmitted must already be in digital form, Congress
ensures that the exemption does not itself authorize digitizing works.
Such authorization would need to be obtained from the copyright owner,
or found in another provision of the law such as fair use.
Technological protection measures provide publishers of educational
literary works with yet another safeguard against use by persons other
than those enrolled in the class and against unauthorized retention or
downstream use.
Question 5: To encourage the use of the Internet in distance
learning, the TEACH Act would expand the distance education exemption
in current law to permit the reproduction and distribution of
copyrighted works to the extent technically necessary to transmit the
work otherwise covered by the exemption. These copies are not to be
retained any longer than necessary to complete the transmission and, if
they are, the exemption will no longer apply. Educational institutions
have raised a concern over caching, which is an automatic storage of a
copy in an Internet Service Provider's server or a user's browser to
make the Internet run more quickly. The school doing the transmitting
of a copyrighted work under the exemption may have no knowledge of or
control over the caching of copies of the work, even though such
caching might result in potential liability for the school. Should
additional language be added to the bill to make clear that such
automatic caching would be covered by the expanded exemption and, if
so, what language would you suggest?
Answer: Yes, language should be added or substituted to address
concerns about institutional liability for caching. Pages 4-6 of my
testimony discuss the caching issue in detail. The Copyright Office is
presently working with the affected parties to craft appropriate
language to propose to the Committee.
Question 6: Both the Copyright Office report and the report of the
Web-Based Education Commission headed by Senator Bob Kerrey noted that
educational institutions have difficulty with licensing for digital
distance education. Even after schools determine who the copyright
owner is, they often face delays in locating the owner, obtaining
permission and then may incur substantial licensing costs. The TEACH
Act proposes a study by the Copyright Office on the licensing problems
encountered by schools. Are there any steps being taken by schools or
copyright owners to make the licensing process easier to understand and
to pursue?
Answer: The Copyright Office lacks sufficient information to answer
this question at this time.
Question 7: The bill requires the educational institution to limit
reception of an exempted transmission to enrolled students or
government employees ``to the extent technologically feasible.'' In
addition, the bill requires the educational institution to apply
technological measures ``that reasonably prevent unauthorized access''
to the work.
Question (a): Would the fact that these requirements are not
identical to each other pose a problem for educational institutions to
comply or are the requirements complementary?
Answer: After further review of the language of the bill, we have
concluded that the requirements are complementary, and refer to two
different technological controls. The condition in subparagraph (C),
appearing at lines 5-7 on page 3 of the bill, relates to controls over
access to the transmission--e.g., who can access the material from the
university server. The condition in subparagraph (E)(ii), appearing at
lines 5-7 on page 4 of the bill, relates to access control measures
that are to be applied to the work itself--e.g., persistent file-level
access control technologies--so that the work cannot be accessed if it
is somehow further distributed
Question (b): Do you believe these requirements would impose any
obligation on educational institutions to use technology to prevent
students from freely downloading the materials transmitted?
Answer: The bill requires educational institutions to prevent
students from freely downloading the materials transmitted by requiring
(a) that the transmission be limited to enrolled students ``to the
extent technologically feasible''; (b) that the institution use
technological measures to reasonably prevent unauthorized access to or
dissemination of the work; and (c) that technological protection
measures used by the copyright owner not be interfered with. Each of
these conditions require the use of technology.
Question (c): What degree of protection would be ``reasonable? ''
Answer: Reasonableness would vary depending on such circumstances
as the effectiveness of the protection, the types of protection
available in the marketplace, and the degree of risk that particular
content will be subject to unauthorized use.
Questions for Marybeth Peters and Allan Adler:
Question 1: It has been almost two years since the Copyright Office
issued its report on distance learning and made its legislative
recommendations. Are there any new developments, new concerns or
significant advances in technology that would affect any part of the
analysis in that report?
Answer: The Copyright Office has received no information in the
interim that would lead us to change the conclusions that we drew in
the Report.
Question 2: The Copyright Office report noted that access control
measures to copyrighted works, such as passwords, were already in
widespread use, but technologies that control post access uses for all
types of works were not widely available. Are technical measures now
more readily available to control post-access distribution of works
and, if so, please describe those that are available?
Answer: While the Copyright Office has not completed any study of
this issue, we have received anecdotal evidence that such technologies
are not yet available.
Responses of Gerald A. Heeger to questions submitted by Senator
Thurmond
Question 1: Mr. Heeger, Subsection 1 of Section 2 of the proposed
legislation would broaden the Section 110(2) exemption to allow
educational institutions and government entities to utilize the
performance of audiovisual works under limited circumstances. Should we
refrain from legislative activity due to the rapid development of
technology and licensing systems? Would it be advisable to take a
``wait and see'' attitude, allowing the market to handle our concerns
first? It appears that copyright owners are concerned about broadening
the exemptions because of the possibilities of unauthorized downstream
use of copy righted material. If we delay the enactment of legislation
in this area, will technology develop to the point of allaying the
fears of copyright owners?
Answer 1: The primary need in this area of copyright and exemptions
is for parity. Whatever is possible and allowed in the classroom should
also be possible and allowed in the online environment. To delay this
will frustrate the emergence of distance learning in accredited
institutions. The current situation puts an unnecessary burden on
institutions that is difficult for them to handle. S. 487 contains a
number of safeguards in addition to technological protections, such as
portion limitations, that address concerns of the copyright owners. The
sooner that we can move in the direction of the proposed legislation,
the sooner that it can be demonstrated that these safeguards are
effective, and the sooner we can move to greater cooperation in
licensing.
Question 2: Mr. Heeger, the proposed legislation would require
educational institutions to utilize measures designed to protect
copyright owners in exchange for the broadening of Section 110 (2)'s
exemptions. What will be the costs incurred by educational institutions
and government entities in complying with these protective measures,
i.e., instituting policies, providing information to facility and
students, and purchasing appropriate software.
Answer 2: It is clear from experience that universities have
implemented strong policies for following appropriate copyright laws
with their faculties and students. I am unable to estimate the cost of
compliance, but those costs could pose a problem if, for example, S.
487 were to obligate universities to employ technological protections
that were prohibitively expensive. It is important that S. 487
stipulate that universities employ technological measures that are
``technologically feasible and economically reasonable.'' Parity with
what happens in a face-to-face classroom is what is necessary. The
enforcement objectives should be the same in either case, and online
requirements need to be reasonable.
Question 3: Mr. Heeger, some educational institutions are
considering the establishment of for-profit subsidiaries in order to
provide distance education. This bill would apply to non-profit
educational institutions. Will for-profit subsidiaries of educational
institutions be the wave of the future, thereby frustrating our current
reform attempts.?
Answer 3: There needs to be a distinction between for-profit
teaching institutions and more limited for-profit Subsidiaries. For the
most part, for-profit subsidiaries of non-profit institutions have been
organized for specific functions separate from the instructional
functions of the university, for marketing of developing course
materials, for example. All non-profit universities, regardless of how
innovative, intend to continue operating as non-profit teaching and
research institutions. The creation of new for-profit subsidiaries
shouldn't frustrate progress in the area of copyright agreements.
Responses of Marybeth Peters to questions submitted by Senator Thurmond
Question 1: Ms. Peters, the Copyright Act is reflective of the
teaching environment in the 1970s when there was a great proliferation
of distance education utilizing analog technology. Wouldn't a
broadening of Section 110 (2)'s exemption rights to include limited
rights of reproduction and distribution maintain current policy
objectives, only reformatting the statute to conform with technologies
inherent in digital systems? Specifically, do you foresee any
unexpected harm to copyright owners as a result of this seemingly
innocuous change (assuming technology is implemented to protect
unauthorized downstream use of copyrighted material)?
The broadening of the section 110(2) exemption to cover the rights
of reproduction and distribution to a limited extent is intended to
preserve, in the face of technological changes, the policy objectives
embodies in the current provision. The additional rights are covered
only to the extent necessary to permit institutions to carry out
permitted transmissions over a digital network. In addition,
institutions are required to use technological measures to assure that
only the students for whom a transmission is intended can use the
copyrighted material in the transmission. The Copyright Office does not
foresee any unreasonable harm to copyright owners as a result of this
change, although copyright owners have raised concerns with regard to
the display right (which is discussed below in my response to Question
3).
Question 2: Ms. Peters, Subsection 1 of Section 2 of the proposed
legislation would broaden the Section 110(2) exemption to allow
educational institutions and government entities to utilize the
performance of audiovisual works under limited circumstances. Should we
refrain from legislative activity due to the rapid development of
technology and licensing systems? Would it be advisable to take a
``wait and see'' attitude, allowing the market to handle our concerns
first? It appears that copyright owners are concerned about Broadening
the exemptions because of the possibilities of unauthorized downstream
use of copyrighted material If we delay the enactment of legislation in
this area, will technology develop to the point of allaying the fears
of copyright owners?
I recommended expanding the exemption to include audiovisual works
because of educators' concerns. They indicated that there was a strong
pedagogical value in using this important and popular category of work
for teaching purposes and noted the difficulty of obtaining digital
licenses from owners of audiovisual works. Additionally, digital
distance education is using more and more multimedia works, which
incorporate audiovisual works and may be considered audiovisual works
themselves. Instructional audiovisual works are excluded from the
exemption (as are all instructional works) and the use of audiovisual
works is confined to limited and reasonable portions (e.g., a film
clip, not a substantial part of a film). I believe that the proposed
expansion safeguards copyright owners, especially since the proposed
exemption is contingent on the use of technological measures that
control downstream uses of copyrighted works.
Question 3: Ms. Peters, you stated in your testimony that
Subsection 2 of Section 2 of the proposed legislation would prohibit
the display of copyrighted materials in their entirety because entire
works could not possibly be ``an integral part of a class session,'' as
required by the bill. Wouldn't this language allow instructors of
courses to provide substantial portions of copyrighted materials such
as books, justifying the substantial portions as being integral to a
students preliminary understanding during the class session? Why not
amend the bill to treat displays the same as performances and treated
in Subsection 1 of Section 2 of the bill, which requires reasonable and
limited portions of the performance of a work?
The Copyright Office believes that a fair interpretation of the
limitation that requires displays exempted under section 110(2(A) to be
made `` as an integral part of a class session'' would not permit the
consumption of substantial portions works such as textbooks,
notwithstanding the fact that the exemption for the display of works is
not subject to quantitative limitations. A ``class session,'' even in
the online world, must be limited in scope and duration. Even if an
instructor has the legal right to display an entire text, the ``class
session'' limitation would not permit the student to consume it in its
entirety. There are problems inherent in limiting the display right.
For example, it would be impractical and unreasonable no to permit and
instructor to display an entire painting, photograph, or short textual
work such as a poem. Moreover, since the current exemption permits the
display of entire works, such a limitation would bar activities using
analog technology that are currently permitted.
Question 4: Mr. Peters, the fair use doctrine incorporated into
Section 107 of the Copyright Act is supposed to be technology-neutral.
In you opinion, does digital technology add new ambiguities to the fair
use doctrine?
Note really. As you have stated, the fair use exception, section
107 of the Copyright Act is technology-neutral. Courts have been
applying the fair use doctrine to numerous cases occasioned by changing
technologies in the past decades without the exemption itself growing
any more ambiguous. Courts are today applying section 107 to works in
digital from with no greater conceptual difficulty than in fair use
cases generally.
There is much confusion and misunderstanding about the fair use
doctrine, especially in a digital environment. I did suggest some
clarification through report language that explicitly addresses certain
fair use principles and confirms that the doctrine applies to
activities in the digital environment, as well as inclusion of some
examples of digital uses that might qualify as fair use. The law,
however, should not be amended.
Question 5: Ms. Peters, would it be advisable to legislate some
minimum levels of fair use in lieu of amending the language of Sections
110 (1) and (2)? It appears that educational institutions are wary of
using fair use as a safe harbor because of the lack of certainty
associated with it. Do you think we could accomplish the same policy
objectives by attempting to legislate some minimum uses of copyrighted
works that would qualify as ``fair use''?
Although there is a the lack of certainty inherent in the use of
the doctrine of fair use as an affirmative defense to copyright
infringement, it would nonetheless not be desirable to legislate
minimum levels of fair use in lieu of amending the language of section
110(2). Fair use is intended to be a balancing test of factors that
operates independently from the other specific exemptions and
limitations in sections 108 through 122. Specific exemptions already
exist in section 110(1) and 110(2) to provide educators with strictly
delineated parameters for their use of copyrighted works. Indeed,
section 110(1), which addresses face-to-face teaching activities,
appears to be functioning appropriately, and I am not aware of any
calls for legislative change.
Question 6: Ms.. Peters, the proposed legislation would require
educational institutions to utilize measures designed to protect
copyright owners in exchange for a broadening of Section 110(2)'s
exemptions. What will be the costs incurred by educational institutions
and government entities in complying with these protective measures,
i.e., instituting policies, providing information to faculty and
students, and purchasing appropriate software.
Educational institutions already take some responsibility for the
security of materials they disseminate; use of passwords and other
access controls is widespread. Moreover, many also require compliance
with copyright policies and inform students and faculty about the law.
The only issue seems to be technologies to prevent unauthorized
downstream copying of copyright works. At present, these technologies
are not widely available in the marketplace; thus the actual cost is
not known at this point in time. Nonetheless, we believe that the use
of such technological safeguards is an important part of the policy
balance should the section 110(2) exemption be extended to the digital
realm.
Question 7: Ms. Peters, Subsection 4 of the Section 2 of the bill
would make the protection of the exemptions contingent upon the use of
``technological measures that reasonable prevent unauthorized access to
and dissemination of the work. . . .'' What does ``reasonable'' mean in
this context? Will educational institutions be pulled into litigation
over whether their technological measures are reasonable?
I do not believe that educational institutions will be forced into
excessive litigation over whether their technological measures are
reasonable, because in all likelihood, most educational institutions
will make good faith efforts to institute effective technological
measures to prevent unauthorized access and dissemination. However,
courts have always established standards for what is ``reasonable''
under the law. Reasonableness would vary depending on such
circumstances as the effectiveness of the protection, the types of
protection available in the marketplace, and the degree of risk that
particular content will be subject to unauthorized use. What is clear,
however, is that the technical measure does not necessarily need to be
100% effective-indeed, no technology can be 100% effective.
Question 8: Ms. Peters, some educational institutions are
considering the establishment of for-profit subsidiaries in order to
provide distance education. This bill would apply to nonprofit
education institutions. Will for-profit subsidiaries of educational
institutions be the wave of this future, thereby frustrating our
current reform attempts?
The Copyright Office analysis on the qualifier issue was based on
basic copyright principles. In the 1999 Copyright Office Report on
Digital Distance Education, I recommended maintaining existing
standards of eligibility for the exemption. At the same time, the
Report acknowledged that the lines between for-profit institutions were
becoming blurred and that there was widespread support for requiring
accreditation as a condition for eligibility. Now, nearly two years
later, the lines have blurred even further. Nonetheless, I still view
the non-profit criterion as an appropriate dividing line, perhaps in
conjunction with one or more additional criteria. The Copyright Office
doesn't believe that limiting the exemption to nonprofit institutions
will frustrate the reform efforts. A basic principle of copyright is
the for-profit entities engaged in for-profit activities should license
or purchase copyrighted materials.
Question 9: Ms. Peters, when digital technology is used to transmit
abroad, what are some of the options we have to address choice of law
problems? Can these types of problems be solved in the context of
current statutes and treaty provisions?
When educational institutions in the United States use digital
technology to transmit courses abroad, a number of legal questions
relating to choice of law are raised. Unfortunately, under current
legal doctrines, answers to these questions are still unclear. In the
traditional analog world, the generally accepted view is that questions
of authorship and ownership are governed by the law of the work;s
country of origin, while questions of rights and remedies are governed
by the law of the country where the infringing act takes place. In the
digital realm, however, the situs of the relevant act is not always
clear. Resolution of these difficult issues has been a focus of
attention among law professors and others in recent years. However, at
this point we cannot say whether or not these issues can be solved
within the current framework of treaty provisions and domestic law.
SUBMISSION FOR THE RECORD
Statement of Hon. Maria Cantwell, a U.S. Senator from the State of
Washington
Chairman Hatch and Senator Leahy, thank you for calling this
hearing. Distance learning programs are critical to meeting the goal of
bringing quality education to all Americans.
From my perspective, distance education offers two great
opportunities: first, providing a better education for those in our
rural communities, and second, providing job training and retraining to
America's workforce to meet the needs of the New Economy. Distance
learning is a critical component in our strategy to build a better
educated, more fully employed--and employable--America.
But as we consider changes to copyright law, I want to sound a word
of caution. Intellectual property has been a cornerstone of our
prosperity. When we consider changes to intellectual property law, we
should be sure that the technology is working in our favor. I
understand that some here today are concerned that the exemption that
we are considering is inappropriate for two principle reasons. First,
they argue it is premature since the marketplace hasn't had adequate
time to develop. Second, that technological protections for
intellectual property are not widely in use in distance education
programs, and therefore, the bill is based on a false premise. As to
the first point, I disagree, but as to the importance of technological
protections, I share the concern to some extent.
Let me expand on each of these points:
One of the greatest promises of distance education is the ability
to make a high quality education affordable and accessible to those in
hard to reach rural areas throughout the U.S. I have made it a priority
to enhance federal funding for rural distance education--and distance
medical care programs. This is an area where technology has proven to
be extremely valuable. As we enhance federal funding, Congress must
also examine federal law to see where the law might impair the
deployment of new and innovative programs.
To maintain our edge in the global economy we must ensure that
every American has the opportunity to learn the necessary skills.
Distance learning programs are important to retraining our existing
workforce and bringing into the economy those communities with
historically high unemployment rates. Very simply put, the growth of
distance education will improve our ability to fully employ our
domestic workforce.
That said, we must act with the awareness that intellectual
property is the underpinning of the traditional hightech industries,
those directly involved in developing hardware and software, and other
industries equally critical to the growth of our domestic economy:
publishing, entertainment and the media. And I have heard concerns that
this bill may not adequately protect the intellectual property produced
by these industries.
Specifically, I have heard two concerns I want to focus on: First,
that the distance education marketplace is nascent and rapidly
changing, and that the education and copyright communities haven't had
a chance to work through copyright issues. To this I respond that
distance education is likely to be forever evolving, with infinite
variations and innovations in technological and teaching models. We
need to consider these circumstances as we look at revising the law,
but we need not wait for the industries to ``settle down'' to
identified business models or routine practices.
The second concern that I have heard is that as we consider
amending copyright law to make it easier for teachers to use
copyrighted materials in their online classrooms, we make sure
copyright owners have adequate assurance that their works will be
protected from unauthorized use or distribution. I share this concern
since adequate technological protections for intellectual property are
not yet widely available to online educators. So I am interested in
hearing more about how educators are currently addressing the need to
protect copyrighted materials, and how in the future they will provide
adequate assurances to copyright owners that their materials will not
be distributed beyond their bona fide students.
I would be interested in working with the Chairman, Senator Leahy,
educators and the copyright community to encourage wider use of
appropriately protective technologies and I look forward to doing what
I can to help move this bill forward expeditiously.
I look forward to hearing from our witnesses today and thank you
all for coming.