[Congressional Record Volume 147, Number 29 (Wednesday, March 7, 2001)]
[Senate]
[Pages S2006-S2011]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HATCH (for himself and Mr. Leahy):
  S. 487. A bill to amend chapter 1 of title 17, United States Code, 
relating to

[[Page S2007]]

the exemption of certain performances or displays for educational uses 
from copyright infringement provisions, to provide that the making of a 
single copy of such performances or displays is not an infringement, 
and for other purposes; to the Committee on the Judiciary.
  Mr. HATCH. Mr. President, today I am pleased to introduce with my 
distinguished colleague, Senator Leahy, legislation entitled the 
``Technology Education and Copyright Harmonization Act'' or fittingly 
abbreviated as the ``TEACH Act,'' which updates the educational use 
provisions of the copyright law to account for advancements in digital 
transmission technologies that support distance learning.
  While distance learning is far from a new concept, there is no 
``official'' definition as to what falls under the umbrella of distance 
learning. There is, however, general agreement that distance education 
covers the various forms of study at all levels in which students are 
separated from instructors by time or space. By creating new avenues of 
communication, technology has paved the way for so-called ``distance 
learning,'' starting with correspondence courses, and later with 
instructional broadcasting. Most recently, however, the introduction of 
online education has revolutionized the world of ``distance learning.'' 
While the benefits of all forms of distance learning are self-evident, 
online learning opens unprecedented educational opportunities. With the 
click of a mouse, students in remote areas are able to access a broad 
spectrum of courses from the finest institutions and ``chat'' with 
other students across the country.
  Distance education, and the use of high technology tools such as the 
Internet in education, hold great promise for students in states like 
Utah. Students in remote areas of my state are now able to link up to 
resources previously only available to those in cities or at 
prestigious educational institutions. For many Utahns, this means 
having access to courses or being able to see virtual demonstrations of 
principles that until now they have only read about.
  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. In the 
course of preparing the report that resulted in this legislation, I was 
pleased to host the Register of Copyrights 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 of 
the 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 length of the state. And the promise of distance 
education extends far beyond the traditional student, making expanded 
opportunities available for working parents, senior citizens, and 
anyone else with a desire to learn.

  This legislation 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. 
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.
  While the development of digital technology has fostered the 
tremendous growth of distance learning in the United States, online 
education will work only if teachers and students have affordable and 
convenient access to the highest quality educational materials. In 
fact, in its recent report, the Web-Based Commission, established by 
Congress to develop policies to ensure that new technologies will 
enhance learning, concluded that United States copyright practice 
presents significant impediments to online education. Additionally, the 
Web-Based Commission concluded that there are some needed reforms in 
higher education regulations and statutes. Specifically, the Commission 
identifies reforms needed in the so-called 12 hour rule, the 50 percent 
rule and the ban on incentive based compensation. These education 
recommendations are not included in the legislation I am introducing 
today. However, I want to put my colleagues on notice that I will 
pushing for these reforms and leave open the possibility of amending 
this particular bill or seek other vehicles to include such education 
reform provisions which will improve delivery of distance education to 
a wider variety of students. We will be discussing education reforms in 
the Senate in the coming weeks, and I think it is important that any 
education reform include the kinds of reforms that will promote the use 
of high technologies in education, such as the Internet. And I intend 
to work to have these reforms included in any larger education package 
considered this year.
  As part of its mandate under the Digital Millennium Copyright Act, 
DMCA, which laid the basic copyright rules in a digital environment, 
the Copyright Office was tasked to study the impact of copyright law on 
online education and submit recommendations on how to promote distance 
learning through digital technologies while maintaining an appropriate 
balance between the rights of copyright owners and the needs of users 
of copyrighted works. Without adequate incentives and protections, 
those who create these materials will be disinclined to make their 
works available for use in online education. The interests of 
educators, students, and copyright owners need not be divergent; 
indeed, I believe they coincide in making the most of this medium. As 
expected, the Copyright Office has presented us with a detailed and 
comprehensive study of the copyright issues involved in digital 
distance education that takes into account a wide range of views 
expressed by various groups, including copyright owners, educational 
institutions, technologists, and libraries. As part of its report, the 
Copyright Office concluded that the current law should be updated to 
accommodate digital educational technologies.
  After careful review and consideration of the findings and 
recommendations presented in the report prepared by the Copyright 
Office, not to mention my enormous respect for and confidence in the 
Register of Copyrights, I fully support the Office's recommendation to 
update the current copyright law in a manner that promotes the use of 
high technology in education, such as distance learning over the 
Internet, while maintaining appropriate incentives for authors. While 
the bill we are introducing today is based on the hard work and expert 
advice of the Copyright Office, and is therefore, I believe a very good 
bill, I welcome constructive suggestions from improvements from any 
interested party as this bill moves through the legislative process.
  Currently, United States copyright law contains a number of 
exemptions

[[Page S2008]]

to copyright owners' rights relating to face-to-face classroom teaching 
and instructional broadcasts. While these exemptions embody the policy 
that certain uses of copyrighted works for instructional purposes 
should be exempt from copyright control, the current exemptions were 
not drafted with online, interactive digital technologies in mind. As a 
result, the Copyright Office concluded that the current exemptions 
related to instructional purposes are probably inapplicable to most 
advanced digital delivery systems and without a corresponding change, 
the policy behind the existing law will not be advanced.
  Drawing from the recommendations made by the Copyright Office, the 
primary goal of this legislation is simple and straight forward: to 
promote digital distance learning by permitting certain limited 
instructional activities to take place without running afoul of the 
rights of copyright owners. The bill does not limit the bounds of 
``fair use'' in the educational context, but provides something of a 
``safe harbor'' for online distance education. And nothing limits the 
possibilities for creative licensing of copyrighted works for even more 
innovative online educational experiences. While Section 110(1) of the 
Copyright Act exempts the performance or display of any work in the 
course of face-to-face teachings, Section 110(2) of the Copyright Act 
limits these exemptions in cases of instructional broadcasting. Under 
Section 110(2), while displays of all works are permitted, only 
performances of nondramatic literary or mystical works are permitted. 
Thus, an instructor is currently not able to show a movie or perform a 
play via educational broadcasting.
  This legislation would amend Section 110(2) of the Copyright Act to 
create a new set of rules in the digital education world that, in 
essence, represent a hybrid of the current rules applicable to face-to-
face instruction and instructional broadcasting. In doing this, the 
legislation amends Section 110(2) by expanding the permitted uses 
currently available for instructional broadcasting in a modest fashion 
by including the performance of any work not produced primarily for 
instructional use in reasonable and limited portions.

  In addition, in order to modernize the statute to account for digital 
technologies, the legislation amends Section 110(2) by eliminating the 
requirement of a physical classroom and clarifies that the 
instructional activities exempted in Section 110(2) of the Copyright 
Act apply to digital transmissions as well as analog. The legislation 
also permits a limited right to reproduce and distribute transient 
copies created as part of the automated process of digital 
transmissions. Mindful of the new risks involved with digital 
transmissions, the legislation also creates new safeguards for 
copyright owners. These include requirements that those invoking the 
exemptions institute a policy to promote compliance with copyright law 
and apply technological measures to prevent unauthorized access and 
uses.
  Moreover, in order to allow the exempted activities to take place in 
online education asynchronously, a new amendment to the ephemeral 
recording exemption is proposed that would permit an instructor to 
upload a copyrighted work onto a server to be later transmitted to 
students. Again, extra safeguards are in place to ensure that no 
additional copies beyond those necessary to the transmission can be 
made and that the retention of the copy is limited in time.
  I believe that this legislation is necessary to foster and promote 
the use of high technology tools, such as the Internet, in education 
and distance learning, while at the same time maintains a careful 
balance between copyright owners and users. Through the increasing 
influence of educational technologies, virtual classrooms are popping 
up all over the country and what we do not want to do is stand in the 
way of the development and advancement of innovative technologies that 
offer new and exciting educational opportunities. I think we all agree 
that digital distance should be fostered and utilized to the greatest 
extent possible to deliver instruction to students in ways that could 
have been possible a few years ago. We live at a point in time when we 
truly have an opportunity to help shape the future by influencing how 
technology is used in education so I hope my colleagues will join us in 
supporting this modest update of the copyright law that offers to make 
more readily available distance education in a digital environment to 
all of our students.
  I ask unanimous consent that the text of the bill and explanatory 
section-by-section analysis, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 487

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Technology, Education And 
     Copyright Harmonization Act of 2001''.

     SEC. 2. EXEMPTION OF CERTAIN PERFORMANCES AND DISPLAYS FOR 
                   EDUCATIONAL USES.

       Section 110(2) of title 17, United States Code, is 
     amended--
       (1) by striking the matter preceding subparagraph (A) and 
     inserting the following:
       ``(2) except with respect to a work produced primarily for 
     instructional use or a performance or display that is given 
     by means of a copy that is not lawfully made and acquired 
     under this title, and the transmitting governmental body or 
     nonprofit educational institution knew or had reason to 
     believe was not lawfully made and acquired, the performance 
     of a nondramatic literary or musical work or reasonable and 
     limited portions of any other work, or display of a work, by 
     or in the course of a transmission, reproduction of such work 
     in transient copies or phonorecords created as a part of the 
     automatic technical process of a digital transmission, and 
     distribution of such copies or phonorecords in the course of 
     such transmission, to the extent technologically necessary to 
     transmit the performance or display, if--'';
       (2) in subparagraph (A) by striking all beginning with 
     ``the performance'' through ``regular'' and inserting the 
     following: ``the performance or display is made by or at the 
     direction of an instructor as an integral part of a class 
     session offered as a regular'';
       (3) by striking subparagraph (C) and inserting the 
     following:
       ``(C) the transmission is made solely for, and, to the 
     extent technologically feasible, the reception of such 
     transmission is limited to--
       ``(i) students officially enrolled in the course for which 
     the transmission is made; or
       ``(ii) officers or employees of governmental bodies as part 
     of their official duties or employment; and''; and
       (4) by adding at the end the following:
       ``(D) any transient copies are retained for no longer than 
     reasonably necessary to complete the transmission; and
       ``(E) the transmitting body or institution--
       ``(i) institutes policies regarding copyright, provides 
     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, and provides notice to students that materials 
     used in connection with the course may be subject to 
     copyright protection; and
       ``(ii) in the case of digital transmissions, applies 
     technological measures that reasonably prevent unauthorized 
     access to and dissemination of the work, and does not 
     intentionally interfere with technological measures used by 
     the copyright owner to protect the work.''.

     SEC. 3. EPHEMERAL RECORDINGS.

       (a) In General.--Section 112 of title 17, United States 
     Code, is amended--
       (1) by redesignating subsection (f) as subsection (g); and
       (2) by inserting after subsection (e) the following:
       ``(f) Notwithstanding the provisions of section 106, and 
     without limiting the application of subsection (b), it is not 
     an infringement of copyright for a governmental body or other 
     nonprofit educational institution entitled to transmit a 
     performance or display of a work that is in digital form 
     under section 110(2) to make copies or phonorecords embodying 
     the performance or display to be used for making 
     transmissions authorized under section 110(2), if--
       ``(1) such copies or phonorecords are retained and used 
     solely by the body or institution that made them, and no 
     further copies or phonorecords are reproduced from them, 
     except as authorized under section 110(2);
       ``(2) such copies or phonorecords are used solely for 
     transmissions authorized under section 110(2); and
       ``(3) the body or institution does not intentionally 
     interfere with technological measures used by the copyright 
     owner to protect the work.''.
       (b) Technical and Conforming Amendment.--Section 802(c) of 
     title 17, United States Code, is amended in the third 
     sentence by striking ``section 112(f)'' and inserting 
     ``section 112(g)''.

[[Page S2009]]

     SEC. 4. IMPLEMENTATION BY COPYRIGHT OFFICE.

       (a) Report.--Not later than 2 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--
       (1) licensing by private and public educational 
     institutions of copyrighted works for digital distance 
     education programs, including--
       (A) live interactive distance learning classes;
       (B) faculty instruction recorded without students present 
     for later transmission; and
       (C) asynchronous delivery of distance learning over 
     computer networks; and
       (2) the use of copyrighted works in such programs.
       (b) Conference.--Not later than 2 years after the date of 
     enactment of this Act, the Copyright Office shall--
       (1) 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 section 
     110 (1) and (2) of title 17, United States Code;
       (2) to the extent the Copyright Office determines 
     appropriate, submit to the Committees on the Judiciary of the 
     Senate and the House of Representatives such guidelines, 
     along with information on the organizations, Government 
     agencies, and institutions participating in the guideline 
     development and endorsing the guidelines; and
       (3) post such guidelines on an Internet website for 
     educators, copyright owners, libraries, and other interested 
     persons.
                                  ____


Section-by-Section Analysis of the Technology, Education, and Copyright 
                           Harmonization Act


                         section 1. short title

       This bill may be cited as the ``Technology, Education And 
     Copyright Harmonization Act of 2001'' or the TEACH Act.


     section 2. exemption of certain performances and displays for 
                            educational uses

       The bill updates section 110(2) to allow the similar 
     activities to take place using digital delivery mechanisms 
     that were permitted under the basic policy balance struck in 
     1976, while minimizing the additional risks to copyright 
     owners that are inherent in exploiting works in a digital 
     format. Current law allows performances and displays of all 
     categories of copyrighted works in classroom settings, under 
     section 110(1) of the Copyright Act, and allows performances 
     of non-dramatic literary and musical works and displays of 
     works during certain education-related transmissions (usually 
     television-type transmission) under Section 110(2). Section 
     110(2) is amended to allow performances of categories of 
     copyrighted works--such as portions of audiovisual works, 
     sound recordings and dramatic literary and musical works--in 
     addition to the non-dramatic literary and musical works that 
     may be performed under current law. Because of the potential 
     adverse effect on the secondary markets of such works, only 
     reasonable and limited portions of these additional works may 
     be performed under the exemption. Excluded from the exemption 
     are those works that are produced primarily from 
     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. As an additional 
     safeguard, this provision requires the exempted performance 
     or display to be made from a lawful copy. Since digital 
     transmissions implicate the reproduction and distribution 
     rights in addition to the public performance right, section 
     110(2) is further amended to add coverage of the rights of 
     reproduction/and or distribution, but only to the extent 
     technologically required in order to transmit a performance 
     or display authorized by the exemption.
       Section 110(2)(C) 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. In lieu of 
     this limitation two safeguards have been added. First, 
     section 110(2)(A) emphasizes the concept of mediated 
     instruction by ensuring that the exempted performance or 
     display is analogous to the type of performance or display 
     that would take place in a live classroom setting. Second, 
     section 110(2)(C) adds the requirement that, to the extent 
     technologically feasible, the transmission must be made 
     solely for reception by the defined class of eligible 
     recipients.
       Sections 110(2)(D), (E)(i) and (E)(ii) add new safeguards 
     to counteract the new risks posed by the transmission of 
     works to students in digital form. Paragraph (D) requires 
     that transient copies permitted under the exemption be 
     retained no longer than reasonably necessary to complete the 
     transmission. 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. Paragraph 
     110(2)(E)(ii) requires that the transmitting organization 
     apply measures to protect against both unauthorized access 
     and unauthorized dissemination after access has been 
     obtained. This provision also specifies that the transmitting 
     body or institution may not intentionally interfere with 
     protections applied by the copyright owners themselves.


                    section 3. ephemeral recordings

       Section 112 is amended by adding a new subsection which 
     permits an educator to upload a copyrighted work onto a 
     server to facilitate transmissions permitted under section 
     110(2) to students enrolled in his or her course. 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.


             section 4. implementation by copyright office

       Subsection (a) requires the Copyright Office, not later 
     than 2 years after the date of the enactment, to conduct a 
     study and submit a report to Congress on the status of 
     licensing for private and public school digital distance 
     education programs and the use of copyrighted works in such 
     programs. Subsection (b) requires the Copyright Office, not 
     later than 2 years after the date of enactment, to convene a 
     conference of other interested parties on the subject of the 
     use of copyrighted works in education and, to the extent the 
     Office deems appropriate, develop guidelines for the 
     clarification of the appropriate use of copyrighted works in 
     educational settings, including distance education, for 
     submission to Congress and for posting on the Copyright 
     Office website as a reference resource.

  Mr. LEAHY. Mr. President, 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, Maybeth Peters, the Registrar of Copyrights met informally with 
interested Vermonters at Champlain College in Burlington, Vermont, to 
hear their concerns on this issue. Champlain College has been offering 
on-line distance learning programs since 1993, with a number of online 
programs, including for degrees in accounting, business, and hotel-
restaurant management.
  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. I am pleased to join Senator Hatch in introducing the 
Technology, Education and Copyright Harmonization, or TEACH, Act, 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, largely because it is 
responsive to the needs of older, non-traditional students. The 
Copyright Office, CO, report noted two years ago that, by 2002, the 
number of students taking distance education courses will represent 15 
percent of all higher education students. Moreover, the typical average 
distance learning student is 34 years old, employed full-time and has 
previous college credit. More than half are women. In increasing 
numbers, students in other countries are benefitting from educational 
opportunities here through U.S. distance education programs.
  In high schools, distance education makes advanced college placement 
and college equivalency courses available,

[[Page S2010]]

a great opportunity for residents in our more-rural states. In 
colleges, distance education makes lifelong learning a practical 
reality.
  Not only does distance education make it more convenient for many 
students to pursue an education, for students who have full-time work 
commitments, who live in rural areas or in foreign countries, who have 
difficulty obtaining child or elder care, or who have physical 
disabilities, distance education may be the only means for them to 
pursue an education. 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.
  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 the 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, technology highways are just as important 
as 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 employees 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 these 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 business.
  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. Under the leadership of President Roger 
Perry, Champlain College 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.
  Over twenty 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 transmission 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.

  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.'' In 
conclusion, the report concluded that our copyright laws were 
``inappropriately restrictive.''
  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

[[Page S2011]]

exemption in the copyright law for distance learning, but 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 
for 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 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 commend him for scheduling a 
hearing on this important legislation for next week.

                          ____________________