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Judy
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Date: 5/27/99 1:09 PM
RE: ALA Response to Distance Education Report/ALAWON v8, n50 - DISTANCE ED REPOR
NINCH ANNOUNCEMENT
May 27 1999
American Library Association
Summarizes and Analyzes Distance Education Report
In the most recent issue of its Washington Office Newsline, the American
Library Association reports its response to the "Report on Copyright and
Digital Distance Education," released this week by the Copyright Ofice. It
especially notes the report's comprehensiveness and its balanced approach
to the issue, as well as its encouragement of legislative changes.
The ALA article also notes the recommendations made by the Copyright Office
concerning the clarification of fair use, licensing issues, and
international
considerations. In particular, ALAWON reports:
"If any legislative action is taken with regard to distance
education, the report strongly recommends that legislative history
explicitly address certain fair use principles:
-> Confirm that the fair use doctrine is technology neutral and
applies to activities in the digital environment.
-> Provide some examples of digital uses that are likely to
qualify as fair.
-> Explain that the lack of established guidelines for any
particular type of use does not mean that fair use is
inapplicable.
-> Clarify the relationship of guidelines to fair use and other
statutory defenses.
-> Explain that guidelines are a safe harbor rather than a ceiling
on what is permitted, and that guidelines should not be deferred
to as absolute codes of conduct without leeway for reasonable
activities that they may not adequately accommodate."
David Green
============
>Date: Thu, 27 May 1999 12:19:14 -0400
>From: "ALAWASH E-MAIL" <[log in to unmask]>
>To: ALA Washington Office Newsline <[log in to unmask]>
>Subject: ALAWON v8, n50 - DISTANCE ED REPORT; SENATE HEARING
ALAWON: American Library Association Washington Office Newsline
Volume 8, Number 50
May 25, 1999
In this issue:
[1] Copyright Office Issues Report on Distance Education
[2] Senate Judiciary Committee Holds Hearing on Distance Education
Report
[1] Copyright Office Issues Report on Distance Education
On May 25 the Register of Copyrights, Marybeth Peters, released
the "Report on Copyright and Digital Distance Education" as
required by a provision of the Digital Millennium Copyright Act of
last fall. The report (169 pages plus appendices) is available on
the Copyright Office Web site at
http://www.loc.gov/copyright/cpypub/de_rprt.pdf
The report is remarkably comprehensive, given the short 6-months
time frame imposed by Congress, and the recommendations seem well
balanced in recommending an updating of current copyright law
exemptions for distance education, but with safeguards to respond
to proprietor concerns. The report's statutory recommendations
are descriptions of recommended changes, rather than legislative
language. Full evaluation of the impact of such changes would
obviously depend on the specific language and context. Further,
some recommendations seem to depend on, or await the widespread
availability of, certain technological protections that the report
itself admits are not yet in widespread use, or would only be
available to those educational institutions able to use such new
technological protections.
The report provides a useful overview of the nature of distance
education, describes current licensing practices in digital
distance education, describes the status of technologies relating
to the delivery and protection of distance education materials,
analyzes the application of current copyright law to digital
distance education activities, discusses prior initiatives
addressing copyright and digital distance education, and examines
the question of whether the law should be changed, first
summarizing the views of interested parties and then providing the
Copyright Office's analysis and recommendations.
In its discussion of whether the law should be changed, the report
notes that educators and librarians believe that a change in the
law is required to optimize the quality and availability of forms
of distance education that take full advantage of today's
technological capabilities. Members of this community feel that
fair use is uncertain in its application to the digital
environment, that current exemptions are outmoded and do not
extend to the full range of activities involved in digital
distance education, and that licensing for such uses is not
working well. The report also notes that copyright owners do not
believe statutory amendments are necessary or advisable, that
digital distance education is flourishing under current law, that
expanding exemptions would harm primary and secondary markets, and
that licensing fees should be regarding as a cost of distance
education.
The Copyright Office itself concluded that some policy
recalibration may be appropriate at this point, and offered
several recommendations to Congress. These may be summarized as
follows:
1. Clarify that the term "transmission" in section 110(2) covers
transmissions by digital means as well as analog. Do this
through legislative history rather than by statutory amendment.
2. Expand coverage of rights to the extent technologically
necessary. Such an amendment should include the rights of
reproduction and/or distribution only to the extent
technologically required in order to transmit the performance or
display authorized by the exemption. In particular, the ability
to make reproductions should be limited to transient copies
created as part of the automatic technical process of the
digital transmission of an exempted performance or display.
3. Emphasize the concept of mediated instruction. The key 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 setting. In other words, it is 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.
4. Eliminate the requirement of a physical classroom, but
substitute the requirement of official enrollment.
5. Add new safeguards to counteract new risks. The safeguards
recommended include several adapted from provisions contained in
Title II of the Digital Millennium Copyright Act. First, any
transient copies permitted under the exemption should be
retained for no longer than reasonably necessary to complete the
transmission. Second, those seeking to invoke the exemption
should be required to institute policies regarding copyright, to
provide informational materials to faculty, students and
relevant staff, and to provide notice to students that materials
used in connection with the course may be subject to copyright
protection. Third, when works are transmitted in digital form,
technological measures should be in place to control
unauthorized uses. Such measures should protect against both
unauthorized access and unauthorized dissemination after access
has been obtained. The law should impose an obligation not to
intentionally interfere with technological protections applied
by copyright owners. "Access control measures, such as
passwords, are already in widespread use. Technologies that
control post-access uses for all types of works are not yet
widely available. The broadening of section 110(2) to cover
digital transmissions should be tied to the ability to deploy
such measures in addition to access control. If copyrighted
works are to be placed on networks, and exposed to the resulting
risks, it is appropriate to condition the availability of the
exemption on the application of adequate technological
protections."
6. Maintain existing standards of eligibility -- that is, that the
exemption is available only to a governmental body or nonprofit
education institution, as in current law. The report notes that
there was extensive debate over the appropriateness of retaining
the "nonprofit" element in the context of today's digital
distance education.
7. Expand categories of works covered. Section 110(2) could be
amended to allow performances of categories in addition to the
current nondramatic literary and musical works, but not of
entire works, only the performance of reasonable and limited
portions of these additional works. It may be advisable to
exclude from the added categories those works that are produced
primarily for instructional use.
8. Require the performance or display to be made from a lawful
copy, if the categories of works covered by section 110(2) are
expanded to include dramatic works, audiovisual works and/or
sound recordings.
9. Add a new ephemeral recording exemption. Adding a new
subsection to section 112 would permit an educator to upload a
copyrighted work onto a server, to be subsequently transmitted
under the conditions set out in section 110(2) to students
enrolled in the course, subject to certain limits similar to
those set out in other subsections of section 112.
The Copyright Office also made recommendations concerning
clarification of fair use, licensing issues, and international
considerations.
If any legislative action is taken with regard to distance
education, the report strongly recommends that legislative history
explicitly address certain fair use principles:
-> Confirm that the fair use doctrine is technology neutral and
applies to activities in the digital environment.
-> Provide some examples of digital uses that are likely to
qualify as fair.
-> Explain that the lack of established guidelines for any
particular type of use does not mean that fair use is
inapplicable.
-> Clarify the relationship of guidelines to fair use and other
statutory defenses.
-> Explain that guidelines are a safe harbor rather than a ceiling
on what is permitted, and that guidelines should not be deferred
to as absolute codes of conduct without leeway for reasonable
activities that they may not adequately accommodate.
The report suggests revisiting the licensing issue in two or three
years after enactment of any amendment. If problems persist, then
Congress could consider the approaches of other countries such as
Canada. Or Congress could seek to establish some form of
legislative incentives for the development of more effective and
acceptable licensing mechanisms.
The Copyright Office believes its recommendations are fully
consistent with the standards established by the Berne Convention
and the TRIPs Agreement for limitations or exceptions to the
exclusive rights of copyright owners. The report concludes with
the observation that the balance struck in U.S. law will have an
importance beyond our borders, both through its potential
application abroad and as a model for other countries examining
the issue.
[2] Senate Judiciary Committee Holds Hearing on Distance Education
Report
On the morning of the report's release, May 25, the Senate
Judiciary Committee held a hearing on the Copyright Office "Report
on Copyright and Digital Distance Education." The only witness
was Marybeth Peters, Register of Copyrights. Her testimony
summarized the report.
Chairman Orrin Hatch (R-UT), in his opening statement, highlighted
the importance of distance education to his home state of Utah,
and recalled a distance education exposition and copyright round
table at the Utah Education Network where he hosted the Register
of Copyrights. Senator Hatch asked the Register later about the
impact of this visit on the study, and she said it had been very
helpful to all involved.
Ranking minority member Patrick Leahy (D-VT) also noted a visit by
the Register to Champlain College in Vermont during the course of
the study. Leahy quoted the report as saying that by 2002, the
number of students taking distance courses will represent 15
percent of all higher education students.
The hearing was also attended by Sens. Charles Grassley (R-IA)
and John Ashcroft (R-MO). All Senators were very appreciative of
the major work done by the Copyright Office and indicated they
would give the recommendations close attention.
******
ALAWON (ISSN 1069-7799) is a free, irregular publication of the
American Library Association Washington Office. All materials
subject to copyright by the American Library Association may be
reprinted or redistributed for noncommercial purposes with
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ALA Washington Office, 1301 Pennsylvania Ave., N.W., Suite 403,
Washington, D.C. 20004-1701; phone: 202.628.8410 or 800.941.8478
toll-free; fax: 202.628.8419; e-mail: [log in to unmask]; Web
site: http://www.ala.org/washoff. Editor: Lynne E. Bradley;
Managing Editor: Deirdre Herman; Contributors: Phyllis Albritton,
Mary Costabile, Carol Henderson, Peter Kaplan, Claudette Tennant
and Rick Weingarten.
===============================================================
David L. Green
Executive Director
NATIONAL INITIATIVE FOR A NETWORKED CULTURAL HERITAGE
21 Dupont Circle, NW
Washington DC 20036
http://www.ninch.org
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