Digital Millennium Copyright Act (DMCA)
Study on Distance Education and Digital Technologies
Prepared by Arnold P. Lutzker
Lutzker & Lutzker LLP
The Association of Research Libraries
(ARL) with other members of the Shared Legal Capability is developing
a review and analysis of pertinent sections of the recently passed
Digital Millennium Copyright
Act (DMCA), H.R. 105-304. The following piece focuses on a study
on distance education that will be undertaken within the next six
months by the Copyright Office. This provision relating to a study
on distance education and digital technologies is included in the
DMCA due to the strong recognition by members of Congress that issues
surrounding distance education in the networked environment require
Study on Distance Education and Digital Technologies
Although not originally part of the WIPO Implementation Act debate,
distance education became a topic of the negotiations because libraries
and educational interests raised it. The point was that it would
be inappropriate to expand legal protection for commercial owners
of digital works without remedying some of the legitimate legal
concerns of librarians and educators who use copyrighted works and
technologies in education. With a commitment from the Chairman and
Ranking Minority Members of the Senate Judiciary Committee, Senators
Orin Hatch (R-Ut.) and Patrick Leahy (D-Vt.), the Senate included
a Copyright Office study of distance education in the bill. The
study remained part of the Digital Millennium Copyright Act ("DMCA")
as finally enacted.
The provision requires the Register of Copyrights not later than
six (6) months of passage of DMCA (April 28, 1999) to provide Congress
with its recommendations on how to promote distance education through
digital technologies, including interactive digital networks, while
maintaining an appropriate balance between the rights of copyright
owners and the needs of users of copyrighted works.
The study requires the Register to consult with representatives
of copyright owners, nonprofit educational institutions, libraries
and archives and to focus on the following factors:
- The need for an exemption from exclusive rights of copyright
owners for distance education through digital networks.
- The categories of works to be included in any exemption.
- The extent of appropriate quantitative limitations on the portions
of works that may be used under any distance education exemption.
- The parties who should be entitled to the benefits of any exemption.
- The parties who should be eligible to receive distance education
materials under the exemption.
- Whether and what types of technological measures can or should
be employed to safeguard against unauthorized access to, and use
or retention of copyright materials as a condition of eligibility.
- The extent to which the availability of licenses should be considered.
- Other factors that the Register deems appropriate.
On November 16, 1998, the Copyright Office released a preliminary
notice, soliciting identification of interested parties and a statement
of their concerns by December 7, 1998. The Copyright Office will
also invite written submissions over the next few months, and plans
to meet with interested parties and hold public meetings.
For the past twenty years, many of the copyright aspects of distance
education have been regulated by Section 110(1) and (2) and Section
112. These provisions grant an exemption from copyright liability
for in-class performance and displays of certain copyrighted works
and the transmissions of those performances to outside locations.
However, these sections were written for a communications medium
dominated by face-to-face teaching and one-way, closed-circuit television
technology. The emergence and use of digital interactive networks
has raised the issue of how to adjust copyright law to two-way,
open circuitry. This study will form the factual and legal basis
for Congress to organize its review of the law.
Since copyright law has not kept pace with technological changes
and since this study and the Congressional reaction to it will determine
the interest of lawmakers in updating distance education user rights
in the digital age, there is an urgency to obtaining information
about current practices. It is expected that publishers will participate
actively in this proceeding.
Some commercial publishers argued in negotiations that they see
little if any reason to update the rules. They will attempt to persuade
Congress not only that works are and will be readily available to
potential users based on reasonable licenses, but also that a broadened
exemption would pose risk to creation of new works and the principles
of copyright ownership. Moreover, they have on-going concerns about
the potential for widespread copyright infringement of works in
an educational marketplace, dominated by interactive digital networks.
Then, too, many faculty and educational institutions are copyright
owners and publishers. They bring a very special perspective on
the issue and will have a crucial interest in the outcome of the
study and any legal reform.
More generally, libraries and educational institutions must be
prepared to respond. As the advocate of reform, they will need to
document their current and reasonably anticipated practices. This
means they must know the extent to which licensed and unlicensed
works are needed for educational purposes on digital networks. Information
will also be needed regarding who posts and who accesses the digital
networked material and technological protections against misuse.
The economics of licensing and technological protections should
also be considered.
The DMCA asks the Copyright Office to advise Congress on how to
promote distance education, but to do so in the context of balancing
interests of owners and users. Thus, this study provides a forum
for telling policymakers what is needed to expand responsible distance
education practices into the next millennium. Educational institutions
and libraries should take full advantage of this opportunity.