David Carney publishes the Tech Law Journal Daily E-Mail Alert and the Tech Law Journal web site, which cover legislative, legal and regulatory developments affecting the Internet, communications and computing. He can be reached at [email protected] .

The Congress is on course to pass legislation that will amend copyright law to extend the exemption for distance learning to cover the Internet and other digital delivery media. The bill is of immediate concern to rural schools, where students are dispersed, and colleges that are offering online courses to distant students and busy adults who cannot attend their brick and mortar classroom sessions. The bill may also facilitate a shift from classroom based models of education to online learning models.

The sponsors of the Senate version of the bill, Sen. Orrin Hatch (R-UT) and Sen. Pat Leahy (D-VT), working with groups representing copyright holders, educators, and libraries, recently negotiated a compromise bill that passed the Senate Judiciary Committee and the full Senate without a single dissenting vote. Rep. Rick Boucher(D-VA) has just introduced an almost identical version of this bill in the House.

However, there is one possible snag. Rep. Boucher has added language in his bill that would add nonprofit libraries to the set of exempted entities. This goes to the very nature of what distance learning is. The current statute, and the Senate bill, conceive of distance learning as classroom type instruction offered by educational institutions over new electronic media. Adding libraries to the bill opens the door to a much broader concept of distance learning — one that includes an individual’s pursuit of learning from the collection of a library. Publishers are dead set against this addition.

The Hatch Leahy bill, S 487, is titled the Technology, Education and Copyright Harmonization Act, or TEACH Act. Boucher’s bill, HR 2100, is titled the Twenty-First Century Distance Learning Enhancement Act. One title builds the acronym “TEACH”, while the other employs the word “Learn”. This reflects the sponsors’ different views.

There are several reasons for facilitating distance learning via the Internet. First, it can benefit people who cannot attend classes because of work schedules, families, location, or disability. Second, it will further educational possibilities in rural areas. In fact, three of the four lead sponsors of this legislation represent states or districts with many rural and small town voters. Sen. Hatch represents Utah; Sen. Leahy represents Vermont; and, Rep. Boucher represents far western Virginia. Finally, there are those who wish to promote the Internet. The more that the Internet is used in education, the more people will incorporate it into other aspects of their lives.

Congress amended copyright law in 1976 to create the distance learning exemption. At that time the hot new technology was analog closed circuit television. That statute was worded with analog TV in mind. It did not, of course, reference the Internet. More importantly, the 1976 law did not address the copying of files from one computer to another that is an inherent part of the operation of the Internet, but not analog broadcasts or transmissions. These digital files, even if copied only temporarily, can constitute infringing copies of copyrighted works.

Current Law

Title 17, Section 106, contains the basic protection of copyrighted works. It provides that “the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies …” However, Section 110 provides exemptions relevant to education. First, there is the exemption for face to face instruction. Second, there is the distance learning exemption.

Section 110(1) provides the exemption to the Section 106 right for in class face to face teaching. It provides that “Notwithstanding the provisions of section 106, the following are not infringements of copyright: (1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction …”

Section 110(2) provides the exemption for educational transmissions of copyrighted works. It exempts the following:

“performance of a nondramatic literary or musical work or display of a work, by or in the course of a transmission, if —

(A) the performance or display is a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution; and

(B) the performance or display is directly related and of material assistance to the teaching content of the transmission; and

(C) the transmission is made primarily for —

(i) reception in classrooms or similar places normally devoted to instruction, or

(ii) reception by persons to whom the transmission is directed because their disabilities or other special circumstances prevent their attendance in classrooms or similar places normally devoted to instruction, or

(iii) reception by officers or employees of governmental bodies as a part of their official duties or employment;”

The pending bill, as introduced by Rep. Boucher, would rewrite Section 110(2). The new section is substantially longer. It would exempt “work produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks”, provided that several conditions are met.

First, there is a requirement that it be “made by, at the direction of, or under the actual supervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of … an accredited nonprofit educational institution, or a nonprofit library”.

Two new items are noteworthy. First, the school must be “accredited”. Second, libraries are expressly covered. Libraries are not referenced in the 1976 statute, or in the Hatch Leahy bill. This is a major difference between the House and Senate bills. More on this below.

Second, “the performance or display is directly related and of material assistance to the teaching content of the transmission.” This remains unchanged from current law.

Third, “the transmission is made solely for, and, to the extent technologically feasible, the reception of such transmission is limited to … students officially enrolled in the course for which the transmission is made …”

Fourth, “the transmitting body or institution” must take steps to prevent further copying or retention. It must apply “technological measures that, in the ordinary course of their operations, prevent … retention of the work in accessible form by recipients of the transmission … for longer than the class session; and … unauthorized further dissemination of the work in accessible form by such recipients to others.” It must also not “interfere with technological measures used by copyright owners to prevent such retention or unauthorized further dissemination”

The bill also provides that certain items are not exempted. For example, there is no exemption for “textbooks, course packs, or other material in any media, copies … which are typically purchased or acquired by the students in higher education for their independent use and retention or are typically purchased or acquired for elementary and secondary students for their possession and independent use.” Law students will still have to buy new or used hard copies of their casebooks.

Finally, the Boucher bill provides an exemption for temporary storage of digital files in Section 110. It states that “no … accredited nonprofit educational institution, or nonprofit library shall be liable for infringement by reason of the transient or temporary storage of material carried out through the automatic technical process of a digital transmission …” However, there remains the requirement that such temporarily stored material shall not be available to anyone other than the anticipated recipients and that it shall not be stored longer than is reasonably necessary to facilitate the transmission.

The Boucher bill would also amend Section 112, which deals with ephemeral recordings. HR 2100 provides that “it is not an infringement of copyright for a … nonprofit educational institution, or nonprofit library entitled under section 110(2) to transmit a performance or display to make copies … of a work that is in digital form … if … such copies … are retained and used solely by the body or institution that made them, and no further copies … are reproduced from them … and … such copies … are used solely for transmissions authorized under section 110(2).” The Boucher bill also provides that “This subsection does not authorize the conversion of print or other analog versions of works into digital formats, except that such conversion is permitted hereunder, only with respect to the amount of such works authorized to be performed or displayed under section 110(2), if … no digital version of the work is available to the institution; or …the digital version of the work that is available to the institution is subject to technological protection measures that prevent its use for section 110(2).”

The Hatch Leahy bill is identical to the Boucher bill, with three exceptions. First, as has been pointed out, the Boucher bill adds the reference to libraries in several locations. Second, the Hatch Leahy bill contains a provision requiring the U.S. Patent and Trademark Office, in consultation with the Copyright Office, to conduct a study and write a report to the Congress “describing technological protection systems that have been implemented, are available for implementation, or are proposed to be developed to protect digitized copyrighted works and prevent infringement …” Finally, there was a minor technical change made to the Hatch Leahy bill on the Senate floor. Rep. Boucher apparently based his bill on the bill that was reported by the Senate Judiciary Committee.

Other proposals to amend copyright law to accommodate new Internet based uses — such as Napster style online distribution of music — are making no progress in the Congress. The debate over these issues has brought a lot of rock stars and record label execs to Washington. Yet, there are no pending or prospective bills that stand any chance of becoming law in the near term. In contrast, there is considerable consensus in the Congress about the need to adjust the copyright laws to promote online education.

There are several reasons for this. First, the Copyright Office, as directed by Section 403 of the 1998 Digital Millennium Copyright Act, conducted a study on distance education. It issued a reportthat recommended that the Congress pass legislation. In fact, the first version of the Hatch Leahy bill was an embodiment of these recommendations.

Second, there have been other studies that have made similar recommendations. For example, the Web-Based Education Commission, headed by former Sen. Bob Kerrey (D-NE), wrote a report in December 2000 that concluded that “Current copyright law governing distance education … was based on broadcast models of telecourses for distance education. That law was not established with the virtual classroom in mind, nor does it resolve emerging issues of multimedia online, or provide a framework for permitting digital transmissions.”

Hatch and Leahy introduced their bill on March 7. However, publishers were concerned that this original version would have allowed abuse of the distance learning exemption. Hence they opposed the bill. At a Senate Judiciary Committee hearing on March 13, Allan Adler of the Association of American Publisherseven suggested that the H in TEACH Act could stand for “heist.”

Hatch and Leahy, who were the Chairman and ranking Democrat on the Judiciary Committee, acted in concert. They instructed the interested groups to hold a series of meeting, and work out a compromise bill. (Leahy is now the Chairman and Hatch the ranking Republican.)

Faced with compelling reports, and bipartisan instructions to negotiate, the stakeholders did just that. Adler stated that publishers “spent days literally sitting down with representatives of the education and library groups. … We fleshed out the details about how the exemption would operate in practice … making sure the exemption did not become a doorway for abuse.” He concluded that “there were substantial differences of opinion … but in the end we came up with a compromise.”

The Boucher version of the bill, which extends the distance learning exemption to nonprofit libraries, still imposes the same conditions on libraries that it imposes upon educational institutions.

For example, there must be “actual supervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities”. The library must be accredited. And so forth.

But, the point is, libraries only rarely offer classroom type instruction, either on or off line. They offer individual patrons copyrighted content in hard copy format. Certainly, library patrons learn from reading from the library’s collection. Many people may conceive of this as education. And many, perhaps including Rep. Boucher, want to extend to notion of distance learning to include this sort of activity.

Library groups support this concept. Acquiring a single digital copy of a book, and making it available, free of charge, to patrons anywhere, may be very appealing to some librarians. However, it goes to the jugular of the business model of book and music publishers. Book sales to libraries would plummet. So would sales through brick and mortar bookstores, and through proprietary e-book formats. But then, librarians and publishers have always had a different view of copyright and fair use.

Content owners, who have a strong lobbying presence in Washington DC, oppose Rep. Boucher’s addition of libraries to the bill. Rep. Howard Coble (R-NC), the Chairman on the House Courts, Internet and Intellectual Property Subcommittee, tends to prefer a consensus building approach to legislating, such as was conducted by Senators Hatch and Leahy. Moreover, Rep. Howard Berman(D-CA), the ranking Democrat on the Subcommittee, represents a district in Hollywood’s back yard. He takes copyright seriously.

Hence, Boucher’s language adding libraries to the bill may be removed at or before the Subcommittee’s mark up session. If not, the compromise worked out in the Senate could unravel. Said one aide to Sen. Leahy, “Could it be a deal killer? I think it might.”

On the other hand, Rep. Boucher is confident, as always. He stated that “we do extend the setting in which distance learning courses can be sent or received to include nonprofit libraries.” He added that he expects the House to pass a distance learning bill, and, “I do not anticipate problems with this.”