NJIT ArchLib copyright workshop

DISTANCE LEARNING REPORT TO CONGRESS

The 1998 Digital Millennium Copyright Act asked the Copyright Office to report back to Congress . . .

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.

Report issued May 1999. The TEACH Act of 2002 eventually encompassed some of these recommendations.

Fair use is the broadest and most general limitation on the exclusive rights of copyright holders, and can exempt distance education uses not covered by the specific instructional exemptions. It is flexible and technology-neutral, and continues to e a critical exemption for educational users in the digital world . . . While there are not yet any cases addressing the application of fair use to digital distance education, a court's analysis will depend on elements such as the subject matter of the course, the nature of the educational institution, the ways in which the instructor uses the material, and the kinds and amounts of materials used.

Report on Copyright and Distance Education. U.S. Copyright Office, May 1999, p. viii

The question is not whether fair use applies to distance education in a digital environment, but how it does.

Report on Copyright and Distance Education. U.S. Copyright Office, May 1999, pp. 86-87.

Some of the recommendations are:

clarify meaning of "transmission" to mean digital as well as analog
allow copies to be made that are technologically required to transmit otherwise acceptable works (e.g., caching, etc.)
emphasis concept of mediated instruction (i.e., students enrolled in specific courses for limited durations)
eliminate requirement of physical classroom
require instructors to use reasonable safety measures to protect unauthorized copying
maintain existing standards of eligibility (i.e., exemptions for nonprofit educational institutions)
expand categories of works covered (i.e., do not limit to only nondramatic literary and musical works, but allow educators to use any type of work)
require use to be made from lawful copies (e.g., if a professor is going to show a video to her distance learning class, she would have to buy a copy of that video first, rather than use a bootleg copy)
reiterate that Fair Use is technology-neutral and applies to activities in the digital environment

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