06/24/99 Committee on the Judiciary

Testimony of

Laura N. Gasaway

Director of the Law Library and Professor of Law

University of North Carolina at Chapel Hill

Concerning

the Copyright Office Report

on Distance Education

On Behalf Of

American Association of Community Colleges

American Associations of State Colleges and Universities

American Council on Education

Association of American Universities

Association of Research Libraries

EDUCAUSE

National Association of Independent Colleges and Universities

National Association of State Universities and Land-Grant Colleges

June 24, 1999

Washington, DC

I am Laura Gasaway, Director of the Law Library and Professor of Law at the University of North Carolina at Chapel Hill. I appreciate the opportunity to testify before you today on behalf of the undersigned higher education associations in support of legislation that would update the existing exemption for educational transmissions in the 1976 Copyright Act. I was also privileged to represent these organizations in testimony at a hearing last January before the Copyright Office. That hearing was part of the comprehensive study mandated by this Congress when it passed the Digital Millenium Copyright Act, resulting in the recommendations we are considering today.

Before I comment on any of the specific recommendations contained in the Copyright Office's report, I would like to commend the Copyright Office staff for the fair and balanced way in which they conceived and carried out their mandate. The depth and breadth of information contained in the report reflects the seriousness and thoroughness with which they conducted this study. We believe that the report's recommendations reflect the care and thoroughness put into their study, and represents a thoughtful effort. This set of recommendations goes a long way toward enabling educational institutions to fully utilize digital technologies without jeopardizing the market value of copyrighted works.

Mr. Chairman, I have attached to my testimony today a copy of my statement and written comments subsequently submitted by higher education associations to the Copyright Office during the course of its study of the issues. Together these documents describe the terms for an exemption we believe will allow distance education to fully utilize the potential of the digital environment in a manner that protects the interests of copyright owners. We continue to believe that the basic objective of a distance education legislative exemption should be to enable remotely all instructional activities that are currently permitted in the classroom, provided that adequate safeguards exist against the misuse of copyrighted material that would harm the market for that material. I do not plan to use my time here today to reiterate the proposal that we submitted to the Copyright Office. However, please feel free to ask me any questions you may have about it, and I will be happy to respond either orally or in writing.

As you will note, a large number of national educational organizations endorsed the proposal these organizations I represent today developed. However, some of our colleagues within education circles felt then and continue to feel that our proposal falls short of the exemption necessary to promote distance education. Nevertheless, we understand the need for compromise on a difficult issue such as this.

With that in mind, we believe the Copyright Office recommendations generally represent a balanced, reasonable approach that we strongly support. In my statement today I plan to address only three or four major recommendations, but I hope that we will be allowed to expand on our statement at a later date.

First, let me say that we heartily endorse a great number of the Copyright Office recommendations without reservation. For instance, the Copyright Office would eliminate the provision in 17 U.S.C. § 110(2) requiring exempted displays and performances to be transmitted to a classroom or similar place of instruction. Eliminating the classroom requirement is critical to enabling distance education programs to reach students where they are, and to fully utilize the vast potential of distance education to benefit the public. We encourage the Subcommittee to incorporate recommendations such as this one into legislation. Without these provisions, distance education programs would continue to be unnecessarily curtailed.

We likewise support the Copyright Office recommendation that distance education programs should be exempt for whatever reproductions and distributions are technologically necessary to digitally transmit a display or performance over computer networks. We also agree that the purpose in extending the exemption to incidental reproductions and distributions should be only to permit exempted displays and performances to be viewed by the remote student. Based on our understanding of the Copyright Office recommendations, we believe that the proposed amendments to 17 U.S.C. § 110(2) allowing transient copies and to § 112 allowing ephemeral copies to be posted to a server would be sufficient to accomplish this goal.

We believe that, together, these proposed amendments would permit access to course materials at times selected by the student. In order, however, to ensure that the statutory language is not limited to current technology, we would ask Congress to clarify its intent that the exemption would be available to both synchronous and asynchronous transmissions. Anything less would severely limit the development of and potential benefits from the use of digital technologies in distance education.

Second, as we clearly indicated in our proposal to the Copyright Office, we agree with the recommendation that reasonable technological safeguards against downstream copying and distribution must accompany any expansion of the distance education exemption to digital transmissions. Consistent with the recommendations, we explicitly supported a requirement that access to materials must be limited to bona fide students enrolled in the course, as well as the adoption of policies and procedures that promote compliance with copyright laws. We agree with the Copyright Office that an exemption should not become a substitute for student purchase of course materials.

However, we question the Copyright Office recommendation that, in addition to reasonable technological protections against unauthorized uses of copyrighted materials, there is a further need to limit the portion of a work that may be transmitted to students. Where the potential for infringement is no greater remotely than in a local classroom, we see no reason, for instance, why a professor in a supervised, video teleconferencing situation should not be able to display or perform whatever he or she could in a classroom setting.

The Copyright Office argues that limiting a performance to a portion of a work helps protect the market for that work, since the public would have no interest in less than the whole work. However, this argument is not relevant because, when there are technological measures to prevent downstream copying, the public does not have access to the work. Rather, it applies only where the public has access to the work because safeguards against unauthorized copying and distribution are not in place. As we suggested to the Copyright Office, a limited exemption, such as one that limits the portion of works that may be performed, should be available to distance education programs that limit access to the course and implement strategies to promote compliance with copyright law, but are unable to employ technologies to prevent downstream use of materials.

Finally, there are a number of recommendations contained in the report that we would be pleased to support with further clarification regarding their intended effect. For instance, the report recommends that the law should impose an obligation on educational institutions not to interfere with technological protections copyright owners may apply to their works. This provision is apparently adapted from the Digital Millennium Copyright Act exempting internet service providers from liability for infringing acts by a subscriber. It is not obvious how a similar requirement would work as a practical matter in the context of distance education. An ISP serves as a passive conduit for materials uploaded by others, whereas in distance education the works are uploaded by the educational institution. It would appear that the distance education exemption could be nullified by copyright owners whenever protections applied by them would prevent legally acquired works from being uploaded in the first place. In these circumstances educational institutions would lose the distance education exemption and be reduced to having access to material only on terms chosen by the copyright owner by a license. We would hope that Congress will clarify that, by prohibiting interference with protections applied by a copyright owner, it does not intend to prevent the transient and ephemeral copies or the transmission and reception of exempt displays or performances.

Congress clearly recognized the import and complexity of a copyright exemption for digital distance education when it charged the Copyright Office with responsibility for conducting the study and making the recommendations you now have before you. This issue is of vital concern to the educational institutions we represent. The higher education associations have been pleased to participate in the process created by the Copyright Office.

We agree with the Copyright Office characterization of their recommendations as extending the policy enacted by Congress in 1976 into the digital environment of today and the future. We believe the Copyright Office recommendations represent a balanced, reasonable approach and we endorse a great number of the recommendations without question. We urge Congress to adopt these recommendations by making the necessary changes to current law. In doing so, we hope you will give careful consideration to our modest suggestions for modifications to, or clarification of, those recommendations.

Thank you for the opportunity to present our views.

On behalf of: