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Lutzker & Lutzker LLP
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Arnold P. Lutzker
Susan J. Lutzker
Carl H. Settlemyer, III

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 additional scrutiny.

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.