Authors: Ruth Soetendorp and Bartolomeo Meletti
Illustration: Davide Bonazzi
The use of materials protected by copyright is essential to the learning process. Educational resources exist in all formats that are recognised as ‘works’ in copyright law.
To minimise the burden on teachers and students who want to make use of copyright materials as part of their teaching and learning experience, the law includes a number of exceptions that allow for the use of all types of copyright work for certain educational purposes.
If you are using materials in an educational context this does not mean that you can forget about copyright. What it does mean is that you need to be aware of when you can use a work without obtaining permission or paying a licence fee, and when permission or a licence is required.
For example, the law makes clear that certain exceptions for education can only be relied upon in the absence of a relevant educational licensing scheme. This means that if a scheme has been set up to license the use of copyright material by educational establishments then the exception does not apply. For instance, if a school or college wants to record television broadcasts for use within a classroom, it should get a licence from the Educational Recording Agency. Other educational licensing schemes to be aware of are those run by the Copyright Licensing Agency and the Open University. Where, however, the use of a work is not covered by one of these schemes, users can rely on the underlying exception.
Within any educational institution there is usually someone who is responsible for copyright issues. A first step could be to find out who has that role in your place of study or work. They should be able to help you understand whether your use of a work is permitted by an exception, or whether a relevant licensing scheme applies. In general, it is important to remember that you are not permitted to make commercial use of any copies created for educational purposes.
Exceptions for education and teaching
One of the most important exceptions for education permits the use of any type of work for the purpose of teaching (or as the law puts it: ‘for the sole purpose of illustration for instruction’). This means that copyright in the work is not infringed by an individual teacher or a student as long as they are copying the work to give or receive instruction (or when preparing to give or receive instruction), and the copying is used to illustrate a point about the subject being taught. Also, the law makes clear that ‘giving or receiving instruction’ allows copying when setting examination questions, communicating questions to students, and answering questions.
However, the exception only applies under the following conditions:
1) The purpose of the use is non-commercial
2) Where practical, there should be sufficient acknowledgement of authorship of the work
3) The use of the material is fair
There is no legal definition of what is fair or unfair in this context. It is an issue ultimately decided by courts depending on a number of factors, such as the amount of the work taken and whether the use would commercially compete with the copyright owner’s exploitation of the material. According to the UK government ‘minor uses, such as displaying a few lines of poetry on an interactive whiteboard, will be permitted, but uses which would undermine sales of teaching materials will still need a licence’. You can find the government’s guide on exceptions to copyright for ‘education and teaching’ here.
So, it is OK for a teacher to copy material onto a blackboard or an interactive whiteboard under this exception. And it is OK for students to copy that material into their notebooks or laptops. For example, a teacher might show a copy of a work by Pablo Picasso, Andy Warhol or Tracy Emin on an interactive whiteboard for a class of students studying art in the 20th century.
What the teacher cannot do under this exception, however, is make photocopies of a work for the students in their class; that type of copying is covered by a different educational exception (see below: Copying and using extracts of works).
There are two other important things to know about this exception. First, it applies to all types of teaching, not just teaching within a traditional educational establishment. Second, the exception cannot be overridden by contract. This means that any term of a contract seeking to prevent or restrict copying under this exception is unenforceable in law.
The law also recognises a number of other situations in which educational establishments are allowed to benefit from suspension of the rules that normally govern the use of copyright works.
Compiling anthologies for educational use that include published literary or dramatic works
No more than two pieces of a copyright work can be included in an anthology within a five-year period, and only provided sufficient acknowledgement is given.
Performing, playing or showing copyright literary, dramatic or musical works in the course of activities of an educational establishment
This exception applies where the audience comprises teachers, students and others directly connected with the establishment, and extends to cover showing a film to such an audience. Persons external to the educational institution such as parents and friends are considered not ‘directly connected with the establishment’. Therefore, if the establishment intends to include parents and others in the audience of the performance, playing or showing of a copyright work, permission must be obtained.
Recording of a broadcast for use in an educational establishment
In order to record a broadcast and play the recording within an educational setting, a licence from the Educational Recording Agency is required. However, if a particular broadcast is not covered by the ERA licensing scheme, the law provides an exception that allows educational institutions to record and play the broadcast anyway, without infringing copyright. This exception also allows institutions to play the recording over secure networks to students receiving instruction online. But, the exception only applies when the educational purposes are non-commercial, and when the recording is accompanied by a sufficient acknowledgement of authorship (where practical).
Copying and using extracts of works
The law provides an exception that allows an educational establishment to make copies of extracts of certain types of work (everything apart from broadcasts and free-standing works or art) for the purpose of instruction. So, under this exception, a teacher could make copies of a work for students in their class.
But, as with the exception for recording and playing broadcasts, copying and using extracts of works is only permitted in the absence of a relevant educational licensing scheme.
For example, if an educational institution wanted to make photocopies of a part of a book for students, it would have to get a licence from the Copyright Licensing Agency. The Copyright Licensing Agency provides a number of different licences for schools, permitting copying from books and magazines, from newspapers, and from published sheet music.
If there is no relevant licensing scheme available, then the educational establishment can rely on this exception. However, the exception only applies under certain conditions: the copy must be made for non-commercial purposes; it must be accompanied by an acknowledgement of authorship (where practical); and, no more than 5% of a work may be copied within any 12 month period.
Copies made under this exception can be communicated to students online, so long as the material is made available within a secure network that can only be accessed by staff and students.
It is important to note that most educational establishments already hold the relevant licences mentioned above. The combination of these educational licensing schemes and copyright exceptions means that teachers and students do not have to worry about seeking permission every time they want to use a copyright work for educational purposes.
There have not been many cases concerning the use of copyright materials in educational establishments. One decision, Universities UK Ltd v Copyright Licensing Agency Ltd  EMLR 35;  RPC 36 concerned the use of copyright materials in the preparation of course study packs. The tribunal concluded that if copies of artistic works were to be included in course packs (as opposed to ordinary class room use) an enhanced licence fee was payable.
The law on use of copyright materials in educational establishments in the United Kingdom is found in Sections 32-36 of the Copyright Designs and Patent Act 1988, which you can read here:
For the changes to sections 32 (copying for teaching), 35 (recordings broadcasts) and 36 (copying and using extracts of works) made by the Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014 see here:
Electronic Journal of Academic and Special Librarianship
v.4 no.1 (Winter 2003)
An Education in ©opyright Law: A Primer for Cyberspace
Dr. Robert N. Diotalevi
Program Coordinator, Legal Studies
Florida Gulf Coast University
Copyright law is once again at the forefront of education in cyberspace.
The Information Super Highway offers a variety of useful information, much of it copyrighted material. There has been recent copyright legislation enacted, including the Digital Millennium Copyright Act and TEACH Act, concerning web-based education.
This work provides an overview of copyright law and addresses the new law as well as related issues.
I. The Law of Copyright
A. The Basics
Copyright law has been a hot topic of late. This has never been more evident than with the emergence of the Internet as a teaching tool. The Internet was once a research project. Today it is the greatest computer system in the world. Also known as the net or cyberspace , this information super highway offers a tremendous amount of material. The information age has created greater concerns about copyright law.
2. Myths and mistakes concerning copyright
There are many misconceptions about copyright law. For example, many believe that one needs to provide notice in order to possess a copyrighted work . Some think that registration is necessary or that photocopying requires express permission from the author in all cases. Also mistakes abound as to the defense of copyrights as well as thoughts of the dreaded “copyright police” coming to arrest against alleged infringement violations . Copyright law is simply misunderstood.
There is no physicality to copyright protection. A copyright is a type of intellectual property, that is, an attachment of intangible rights occurs when certain rules are followed. It is reminiscent of our federal or state constitutional protections. For example, even though a constitution could burn in a fire we would not lose the fundamental freedoms contained therein. A closer examination reveals that there are several privileges afforded by copyright law.
3. What is copyright law?
There are numerous authors who have addressed the subject of copyright law . The reason is that copyright has been around for most of our country’s existence. In fact, the fundamental basis of copyright law stems from the United States Constitution. In Article 1, Section 8, clause 8 we find that the founding fathers wished to promote science and the useful arts by securing an exclusive right to writings. Unfortunately, the fathers did not explain themselves. Perhaps the most important statute in the area of copyright is the Copyright Act of 1976 (The Copyright Act) . It provides the basic framework for all of our present statutes.
Section 106 of the Copyright Act provides the owner of a copyright certain exclusive rights. In general they include five safeguards:
- Reproduction of the copyrighted work,
- Preparation of derivative works (adaptations) based upon the copyrighted material,
- Distribution of the work,
- Performance of the work publicly and
- Displaying of the work publicly 
Copyright is a legal device. One must carefully examine several factors in order to determine whether or not copyright law is applicable . Note that copyright law, for the most part, is federal in nature. The laws of other countries must be respected. This work will not address foreign jurisdictional matters such as the international Berne Convention, but will primarily focus upon the laws of the United States while making reference to certain treaties and related concepts.
A major requirement in copyright law is that the work be original in order to have copyright protection. The work must be independently conceived by its creator. In Feist, the U.S. Supreme Court explained that the primary objective of copyright law is “not to reward the labor of authors, but [t]o promote the Progress of Science and useful Arts. . .” . The case involved the determination of lack of originality in printed, white phone directory pages. However the test is not one of newness. For example, assume a teacher in Orlando writes an article called “Understanding Copyright Law.” Another teacher in Omaha has just completed a very similar article with the same name. Neither knows of the other’s efforts. Both instructors have created an original work; hence copyright protection is afforded to each of them. Courts would of course look very closely at works that seem to mirror others or outright copy them verbatim as the likelihood of violation is more clear in these circumstances.
5. Expressions and Fixation
A key factor is expression. All authors, including those online, must be aware that copyright law affords protection to expressions rather than ideas . Several works that do not enjoy such afforded protection include titles, names, slogans, symbols, designs, lettering, coloring, improvisational speeches, unrecorded performances, concepts, devices, systems, methods and calendars. Many times other legal protections such as trademark, trade name and patent come into play. Examples of copyrightable material include original, tangible forms of poetry, literature, motion pictures, sound recordings, computer programming, music, videos, plays, photographs, drawings and the like. The work also needs to be fixed. It is so when its embodiment
is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is ‘fixed’ for purposes of this title if a fixation of the work is being made simultaneously with its transmission .
Just about any form of original expression qualifies as a tangible medium. This includes a computer's random access memory (RAM) as well as notes hurriedly penned upon the back of a table napkin. When dealing with cyberspace we need to address a multitude of items (such as downloading or copying onto discs and hard drives). Care must be taken to avoid activities that may constitute a violation of fixed, tangible expressions covered by copyright law (see section III.A. infra). These would include copying and/or using someone’s work outright but the problem is that copyright takes so many different forms. For example, it has been argued that that downloading itself constitutes copying and may very well be an infringement. Also, the faxing of a document qualifies as copying. Many agree that mere transmission is not fixation . Case law is sparse in these areas. Nevertheless one thing is certain: The Internet will provide many issues for courts to decide as a result of our advancing technological capabilities. And, the legislatures will be kept busy as Congress has grappled over many copyright bills of late .
a. Ownership, Registration and Duration
Ownership rights attach whenever one’s expression is fixed in a tangible medium. No other action is necessary to obtain such privileges. Thus, usually the people who create the expression own the copyright thereto, but there are exceptions. For example, if an employee in the course of his or her employment does such a work, the employer owns the copyright of it. Or, if the creator sells the copyright it becomes the property of the business or person who purchases it. Faculty should be careful in reading contracts as well as faculty handbook language that may be incorporated by reference into contractual agreements regarding copyright ownership. There is no controlling case law in this area in light of recent legislation.
It is often surprising to educators that no major protocol exists to obtain copyright protection. It is no longer necessary to provide notice (discussed below) Registration, however, is advisable. This is the process by which one informs the U.S. Copyright Office of copyright ownership. The Copyright Office provides simple forms . All that is necessary are filing out the paperwork, a twenty-dollar fee and a copy of your expression. Registration assists in protecting one’s rights, enjoining others and obtaining statutory and civil remedies. In fact, registration is required in order to bring an infringement suit .
Regarding the length of time that copyright protection lasts on one’s work, it used to run for an artist’s lifetime plus fifty years. In 1998 President Clinton signed The Sonny Bono Copyright Term Extension Act, a measure extending the term an additional twenty years. .
If the work is for hire, that is, it is done in the course of employment or has been commissioned, the copyright lasts between 95 and 120 years, depending on the date of publication. Publication includes sales, leasing, freely giving away and public distribution.
Most are familiar with the old copyright notification symbols. They usually contain a C in a circular symbol, or the actual word copyright, with the date and name of the owner.
Copyright (or ©) 1997 Bill Kane
In March 1989 the United States joined the Berne Convention for the Protection of Literary and Artistic Works . This multinational treaty provided copyright mutual protection and made notice symbols obsolete. By joining Berne the United States and member nations recognize and respect each other's laws at least minimally. There are advocates of the notice can’t hurt rule, but it remains an optional tool at best.
B. The Fair Use Doctrine
There are several defenses available for those who have allegedly violated copyright. Among these defenses are:
- The work is in the public domain. For example, federal documents are not afforded the protections of copyright law,
- The copyright may be expired, or the holder may have forfeited his or her rights in the work, or
- The copyright holder may have granted another permission to use the work.
Fair use  is also an exception to normal copyright legalities. It allows, in a limited manner, use of copyrighted protected materials in items for purposes of parody, news reports, comedic acts, research and education. The law considers four factors in determining if fair use is applicable as a defense. They are:
- the purpose and character of the use, including whether use is of a commercial nature or is for nonprofit educational purposes,
- the nature of the copyrighted work,
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole and
- the effect of the use upon the potential market for or value of the copyrighted work (emphasis added) .
Fair use is on a case by case basis. The case of Campbell v. Acuff-Rose Music, Inc.  demonstrates this. The Court corrected two common lower courts errors. One was to treat the market effect factor as being the most important factor. The other error was to give copyrighted works class treatment by holding, for example, that since the copying of material from one book is infringement, copying from all books is infringement. The Court stressed that simple piracy is to be distinguished from those raising reasonable contentions of fair use. The Supreme Court reversed the Sixth Circuit Court, claiming that it erred in finding copyright infringement against 2 Live Crew. The petitioners were band members Luther R. Campbell, Christopher Wongwon, Mark Ross, and David Hobbs. The group parodied Roy Orbison’s “Oh, Pretty Woman” in a song Campbell entitled ”Pretty Woman” (see Table 1). After nearly a quarter of a million copies of the recording had been sold, Acuff-Rose sued 2 Live Crew and its record company, Luke Skywalker Records.
"Oh, Pretty Woman" by Roy Orbison and William Dees
"Pretty Woman" as Recorded by 2 Live Crew
- The purpose and character of the use was a parody,
- The nature of the copyrighted song does not prevent commercial use of a parody,
- The portion used was only the necessary amount, as no more of the lyrics were taken than was necessary in relation to the parodic purpose, and
- The parody was unlikely to have a large effect on the marketplace.
The major problem with fair use is that few courts have addressed academic concerns. Compare Basic Books, Inc. v. Kinko’s GraphicsCorp.,  with American Geophysical Union v. Texaco, Inc. . These latter two cases are from the same federal district court with differing results regarding photocopying for education and personal use.
1. Confusing the Issue with CONFU
In October 1996 The Working Group on Intellectual Property Rights in the Electronic Environment under the Clinton Administration proposed guidelines under CONFU, The Conference on Fair Use. CONFU was initiated in September 1994 and ended May 1997. The U.S. Patent & Trademark Office hosted the event. Informal talks regarding over twenty topics of interest occurred. No proposals, however, garnered any strong support by participants. CONFU’s objective, among others, was to cover fair use in educational settings regarding electronic materials .
CONFU offered no solid guidance concerning online course materials. Since this subject matter is so new to our legal system CONFU hardly even addressed it. Instead, CONFU participants decided to let present fair use standards as interpreted by the courts dictate most educational situations. Thus, the problem with CONFU is that it left distance teachers without a clear online strategy.
2. Fair Use Today…still fair?
Fair use is still somewhat convoluted. It is unclear as to what actually constitutes fair use. This is especially true in light of the passage of the Digital Millennium Copyright Act and the TEACH Act (see section III, infra). Also complicating the matter are new and challenging digital advancements. Section 110 (1) of the Copyright Act permits most face-to-face uses. However, copyright holders have exclusive rights to public display and public performance of their works. Table 2 shows some common classroom allowed and disallowed activities gleaned from past statutes as well as case law:
|Permissible Uses||Impermissible Uses|
|Unlimited, non-dramatic performances of music or literature (i.e., reading novel excerpts and musical lines)||Dramatic performances of musicals or literary works|
|Unlimited displaying of charts, graphs or photographs, including stills of motion pictures (distance education included)||Copying coursepacks for class distribution without meeting fair use criteria for each material used|
|Copying out-of-print-books||Out-of-print book (placement on Web)|
|Journal article posted to Web page (restricted access, students and faculty)||Textbook photocopying and placement on Web (even if password or pin provided)|
|Placement of book on reserve in library||Copying of book and placement on reserve in library|
|Showing videotape for classroom instruction||Copying videotape for classroom instruction and/or charging fees|
|Broadcast or rebroadcast of classroom presentation to home or office (including the showing of another's video if permission is obtained|
|Videotaping of classroom (teacher’s or student’s presentation|
|Text, video, audio, and/or photographs used in telecourse for enrolled students|
|Telecourse via cable television if institution- controlled audience (i.e., student body)|
|Remote access of searchable database via the Internet if institution-controlled audience|
|Student project placed on the Internet with restricted access to other students|
|Use of commercial, instructional videotape on cable television or two-way interactive video|
|Use of commercial, instructional videotape on cable television or two-way interactive video (via Internet, access restricted)|
|Taping on air television program to be shown on cable television or via two-way interactive video (remote sites allowed to record class to avoid possible technical difficulties)|
There are several cases of note that provide guidance regarding instructional purposes even though they do not directly deal with education. For example, in 1991 the court in Basic Books, Inc. v. Kinko's Graphic Corp.  held that a commercial copy shop that copied coursepacks was not entitled to the right of fair use. A similar ruling occurred in 1996 with Princeton University Press v. Michigan Document Services . Photocopying by a for-profit corporation’s lab scientist Chickering did not constitute fair use. It is interesting to note that one of the three dissents favored the making of multiple copies by professors in classroom situations. The court did not address the issue.
To add to the confusion, recent Congressional legislation does not give us clear guidance as to several issues concerning downloading, posting and web site linkage. Future court decisions as well as possible legislation by Congress will be needed to address these matters.
II. TECHNOLOGY…UNWEAVING THE TANGLED WEB
There has been little judicial guidance in the realm of computer-mediated instruction that is so important to educators. Most case law deals with corporate liability regarding copyright infringement such as the NetCom case (see section B3 below). Some scholars claim that The Internet has provided a type of escape from copyright legalities. In other words, with the emergence of innovative ways of communicating such law is not applicable to the information highway and the statutes and cases are too archaic. This argument has had little effect upon Congress in the consideration of laws. Nor have many in the field given it much if any validity.
B. Distance Learning
Distance learning refers to the delivery of educational materials that occurs when course instruction is in a non-traditional setting . Examples include audio, video, motion picture, cable television, microwave and, of course, the Internet. The Copyright Act governs performances and displays of works. But, lately, the educational use and transmission of copyrighted information was found to require additional legal guidance especially when distance learning came into play.
1. Concerns for the Digital Millennium Educator: Institutional Policies and Procedures
Several institutions have addressed copyright law by implementing measures via hard copy or the Internet . Colleges and universities offer subjects on such intellectual property matters. At conferences nationwide educators have expressed to me the need for institutions to provide offerings in these areas. There are many excellent resources available to those not familiar with these issues (see Table 3). The most complete resource I have found is by the State Copyright Regents Committee’s Office of Legal Affairs at The University of Georgia. It covers such topical areas as research, writing, multimedia projects and video/sound recordings. It does so by a series of questions and answers dealing with everything from unpublished letters to out-of-print books. The site contains wonderful scenarios such as professors who scan articles from copyrighted journals and add them to their web pages, the showing of copyrighted motion pictures for instructional purposes, copying videotapes for classroom instruction and the creation of telecourses utilizing copyrighted materials. And, it gives a good general overview of copyright law. Also, The Copyright Clearance Center has a free handout entitled “Guidelines for Creating a Policy for Copyright Compliance" .
|University of Georgia||"The Regents Guide to Understanding Copyright and Educational Fair Use"||www.usg.edu/admin/legal/copyright/ and http://www.peachnet.edu/admin/legal/copyright/ copy.html (accessed November 15, 2002)|
|Indiana University-Purdue University Indianapolis and Indiana University||The Copyright Management Center serves both institutions. It has everything from fair use to distance education to library issues and special media issues. Indiana University offers policies as well as sample forms for faculty regarding distance learning and research considerations in general|| http://copyright.iupui.edu/(accessed November 15, 2002)|
http://www.indiana.edu/~rugs/respol/intprop.html(accessed November 15, 2002)
|The University of Texas||"Guidelines for Classroom Copyrighting of Books and Periodicals," adapted from the Association of American Publishers and The Author's League of America.|
The University System also has wonderful copyright presentations via the Web.
Check out "Copyright Law in Cyberspace" at the above site with /nacua.htm finishing the web address after the intellectualproperty.
Be sure to visit the copyright management information site at the preceding address, ending in copymgt.htm
Finally, for the beginner, UT has a great site called "Crash Course in Copyright"
| http://www.utsystems.edu/OGC/ IntellectualProperty/clasguid.htm (accessed November 15, 2002)|
http://www.utsystem.edu/OGC/ INTELLECTUALPROPERTY/cprtindx.htm#top (accessed November 15, 2002)
|Rensselaer Polytechnic Institute||http://www.lib.rpi.edu/services/policies/ lawhighlights.html (accessed November 16, 2002)|
|Massachusetts Institute of Technology||http://web.mit.edu/policies/13.1.html (accessed November 15, 2002)|
|The University of Kansas||Found in Part 8 of the document||http://www.kansasregents.org/academic/policy/ academic.html (accessed November 15, 2002)|
|Massachusetts Institute of Technology||MIT also has a good site regarding frequently asked questions on copyright.|| http://web.mit.edu/policies/13.1.html (accessed Jan. 14, 2001)|
http://web.mit/cwis/copyright/faq.html (accessed Jan. 14, 1999) (dated 1995)
|North Carolina State University||http://www.lib.ncsu.edu/scc/copyright/ copyrightmenu.html (accessed November 15, 2002)|
|Princeton University||http://www.wfubmc.edu/neurology/copyright/ princeton.html (accessed November 16, 2002) (dated 2000)|
|Cornell University||Cornell is one of the best resources in copyright research.|| http://www.research.cornell.edu/CRF/policies/ copyright.html (accessed November 15,2002)|
href="http://www.law.cornell.edu/topics/ copyright.html (accessed November 15, 2002)
|Stanford University||Stanford also has excellent guidelines on fair use.||http://fairuse.stanford.edu/ (accessed November 15, 2002)|
|Yale University||"Copyright Resources Online" is a fantastic summary for anyone interested in these and related issues.||http://www.library.yale.edu/~okerson/ copyproj.html (accessed November 15, 2002)|
|The University of Tennessee||http://toltec.lib.utk.edu/~gco/copyright.html (accessed November 15, 2002)|
|The University of Canada at Alberta||"Copying Right"||www.library.ualberta.ca/copyright/ copyingright/index.cfm (accessed November 15, 2002) (dated 1994)|
|The University of Chicago||"Policy Guidelines for Publishing Networked Information"||http://www.uchicago.edu/docs/policies/ publishing-policy.html (accessed November 15, 2002) (dated May 30, 2000)|
2. Web-related Issues
Concerns have existed as to linking to a web site without permission. Such linkage probably would be beneficial to businesses. In other words, the mere provision of access to another’s site, as long as no one directly steals, gives credibility and free advertising to the company providing the site. People would be telling others of the organization free of charge. More importantly, there are other issues involving cyberspace that need to be examined.
Most scholars feel that some issues will remain the constant. In other words, treatment of material on the Web is similar to that of literature. While information on the Web may be protected, it should be noted that copyright protection does not extend to computer systems, processes and the like. The copyright protections do not cover machinery. Clearly actions such as browsing, e-mailing and related practices seem free of major problems. Section 110 of The Copyright Act addresses copyrighted works regarding distance education; however, the language of the statute has been quite befuddling. Section 110(2) has allowed for the "transmission" of a performance or display, but only within defined limits. The code defines "transmit" to mean communicating a performance or display "by any device or process whereby images or sounds are received beyond the place from which they are sent." Note that before 2002 Section 110(2) allowed displays of nearly all works, but it confines the allowed performance to a non-dramatic literary or musical works. Thus, a professor may read a book concerning The Titanic aloud, but showing the movie of the same name is quite another matter. When passed in 1976 Section 110(2) involved only television technology. The waters then got even murkier when information became capable of being transmitted via the Internet.
The NetCom Case
In the case of Religious Technology Center v. Netcom On-Line Communications Services Inc. (referred to as NetCom) , Netcom found itself ensnarled in a copyright infringement suit. The case centers upon a former Church of Scientology minister, Dennis Erlich. He copied some of the works of L. Ron Hubbard. Erlich then placed them on Usenet. Erlich accessed Usenet via a Bulletin Board Service (BBS). Netcom provided linkage. Plaintiffs Religious Technology Center and Bridge Publications, Inc., sued Erlich as well as the BBS operator, Klemesrud, and the Internet access provider, Netcom. The plaintiffs had informed both Klemesrud and NetCom of the infringement, but they contended that it would be impossible to prescreen Erlich's postings. Furthermore, NetCom stated that removing Erlich from the Internet would mean affecting hundreds of users of Klemesrud's BBS. The case turned on the NetCom’s potential liability. The court granted in part and denied in part the plaintiffs’ motion for a preliminary injunction against Erlich . In the other opinion  the court granted in part and denied in part NetCom’s and Klemesrud’s motions for summary judgment as well as judgment on the pleadings and denied plaintiffs’ motion for a preliminary injunction.
Traditionally, as seen in Playboy Enterprises, Inc. v. Frena,  copyright infringement has been a "strict liability" offense, i.e., the infringer may be liable for the illegal act even if he neither knew nor had reason to know of it. The plaintiff sued Netcom on three liability theories: direct, vicarious and contributory. The court held that direct liability was inapplicable in that Netcom did not engage in any action that caused a direct violation of copyright law. The company merely created a copy for a third party. The postings resulted in the creation of copies on Netcom’s storage devices, but the creation of the copies as well as the distribution and display of them was done without any volitional act .
On the issue of vicarious liability the court also stated that plaintiff failed to prove defendant had the requisite control over the infringer’s actions sufficient to show any gain from its action. However, on the issue of contributory liability the court held there existed evidence that presented a question of fact as to whether Netcom had knowledge and failed to take appropriate action. The plaintiff informed Netcom of the infringement. The Court held that failure to take said action equates to substantial participation in these instances resulting in potential liability for the storage of data. The Court stated that Erlich had infringed, but the case regarding NetCom was ultimately settled out of court in 1996 .
A link or URL (Uniform Resource Locator) is a destination obviously not copyrightable since it does not represent an expression that is fixed in nature. There is the issue of the accessing of web pages. The problem arises when one saves a page to the hard drive. This action constitutes the making of a copy so copyright law is applicable. The crux of the matter is whether or not there is wrongful reproduction of a fixed expression so as to violate the law. There are those who contend that public domain or fair use standards apply in these instances. Again, the courts will have to deal with this subject matter in the future.
C. Permission: The Rule of the Day
Since copyright law is still a bit muddled when it comes to issues involving teaching, distance education and the like, obtaining consent is usually a smart thing to do. In fact, it is the best thing to do to ensure legality. For example, whenever materials are being used for commercial or profit purposes, obtaining permission is essential. Most of us forget that educational institutions are here to make money. Organizations charge fees in distance learning. Not only is getting permission proper netiquette but it will save dollars down the road and potential loss of employment for those responsible. When viewing another’s work ask the following questions:
- Does copyright law protect this work?
- Am I trying to use and copy it for myself as my own work?
- Does any exception to the law apply (e.g., fair use)?
D. Legality: Truth or Consequences
Realistically, most educators have never been faced with copyright-related lawsuits for good reason: a cause of action is simply too expensive for the plaintiff to pursue. In the past only a few suits have been filed against faculty. However, there are valid reasons for obedience to the law. Universities and colleges bear responsibility of complying with these laws. Most likely they will be the targets of the deep pocket legal action. Even though most unauthorized uses are never litigated, if ever discovered, one must be aware of these intricate rules. This is very important when it comes to our educational institutions as well as teachers.
The consequences of copyright violation are housed in an infringement complaint.Along with civil and statutory awards for each violation, criminal penalties could be meted out . Federal criminal consequences have been revised with the passage of The Digital Millennium Copyright Act (see III below). In the case of cyberspace, if guidance is not effectively dispatched many will find themselves facing legal liability in the future.
III. Copyright's Final Frontier?
A. The Digital Millennium Copyright Act
On October 28, 1998, President Clinton signed a bill providing new game rules for the treatment and respecting of online copyrighted material. The Digital Millennium Copyright Act (DMCA)  served as the subject of debate for many interested in copyright law. Both houses of the one hundred and fifth Congress gave it the green light earlier in the month of October . The DMCA adds two new chapters to Title 17 as it strengthens international law worldwide and protects domestic technology. President Clinton released the following statement after passage:
I am pleased that the Congress has passed the Digital Millennium Copyright Act. This bill will implement the two new landmark World Intellectual Property Organization (WIPO) treaties that my Administration negotiated. These treaties will provide clear international standards for intellectual property protection in the digital environment and protect U.S. copyrighted works, musical performances and sound recordings from international piracy. American copyright-based industries that produce and promote creative and high-technology products contribute more than $60 billion annually to the balance of U.S. trade. This bill will extend intellectual protection into the digital era while preserving fair use and limiting infringement liability for providers of basic communication services…. .
The one hundred and fifty-page document divides into five titles (see Table 4 below).
Note Except for Title I (Treaty), each the following are effective upon enactment:
Title I:Implementation of two (2) treaties dealing with digital issues, copyright protection and management systems (The WIPO Copyright Treaty Act and the WIPO Performances and Phonograms Treaty)
Title II:Limitation of Online infringement liability for ISPs (Internet Service Providers) (reducing legal uncertainties regarding such items as digital networks, strengthening anti-online piracy, outlining copyright owners’ notification procedures, defining university liability, and creating a “safe harbor” for ISPs in four (4) situational activities):
3 and 4: requires the ISP to be without knowledge or having reason to know of any infringement, to obtain no direct financial benefit and to not change the materials.
Title III: “The Computer Maintenance Competition Assurance Act” (formerly H.R. 72) (creation of an exception for temporary computer program reproduction in maintenance/repair).
Title IV: “Miscellaneous Provisions” (distance education, exemption for libraries/archives, ephemeral (momentary) recordings).
Title V: “The Vessel Hull Design Protection Act” (formerly H.R. 2696) (creation of new, sui generis protections for boat hull designs, in a new Chapter entitled Chapter 13 of Title 17 of the U.S. Code, effective for two years) .
2. The DMCA in Depth
Specifically, the Digital Millennium Copyright Act:
- Limits copyright infringement liability for Internet Service Providers (ISPs) for the mere transmission of information as a conduit or transient host, provided no knowledge or financial gain is present,
- Establishes guidelines for the removal by ISPs of material from the Internet that appears to be an infringement upon the knowledge by the ISP,
- Limits liability against institutions when faculty members use educational facilities in order to publish materials electronically,
- Makes criminal the circumvention of anti-piracy devices, also known as “little black boxes,”
- Outlaws code-cracking devices but not ones being employed for research, testing, law enforcement activities and related legal means,
- States that the fair use doctrine remains a viable defense in copyright infringement matters, but does not go into much detail,
- Updates the library exemption for facilities to take advantage of digital technology while engaging in activities similar to those for non-digital methodologies,
- Directs The Register of Copyright to consult with educators, copyright owners and libraries, and to submit recommendations for the promotion of distance education through digital means, and
- Implements two treaties regarding the respecting of copyright laws internationally.
The legislation has significant impact on our international status. Although technically the Senate still must ratify international pacts before governments of the world give credence to the measure, the law does prepare for the ratification and execution of two treaties regarding The World Intellectual Property Organization (WIPO). In December 1996, over one hundred and fifty countries agreed on WIPO at a conference on digital information and copyrights in Geneva. The first treaty addresses digital authors’ rights. The second pact focuses upon The Internet and sound recordings. Thirty nations were required to ratify the agreement for it to be effective globally.
Internet service providers, software industry groups, music/movie companies heralded the DMCA, with the support of such leaders as Senator John Ashcroft of Missouri and Representatives Rick Boucher of Virginia, Scott Klug of Wisconsin and Tom Campbell of California. They were particularly gratified with the DMCA affording protection against unscrupulous individuals who could possibly make use of the information super highway for stealing and illegally distributing goods such as software, course materials and websites.
Many applauded the efforts of Congress and the President. However, members of the academic and research communities have mixed feelings about the measure. Some claim the DMCA would hinder concepts of fair use and other acceptable means of validly utilizing copyrighted materials. Concerns regarding educational use continue as a result. There are those who also cite the measure stifles operation, free thought, expression, system corrections, etc. Most library organizations opposed the measure, stating it does not contain many desired provisions.
Among the groups that communicated concerns about the legislation to Congress were:
- The American Association for the Advancement of Science,
- The American Association of Law Libraries,
- The American Association of Legal Publishers,
- The American Historical Association,
- The American Library Association,
- The Digital Future Coalition (DFC),
- The Medical Library Association,
- The Music Library Association,
- The National Education Association,
- The National Humanities Alliance, and
- The Association of Research Libraries .
For example, among the changes, Section 108 of The DMCA now allows libraries to make up to three digital archival copies of published and unpublished materials for storage and retrieval. Previously one copy was allowed. However, The DMCA does not provide that these digital copies be made accessible to the public away from library grounds. The copy sent must arrive in analog form. And, any copyright notice originally on a work should be included on the copy. If not, the library must give a legend stating that the work is possibly protected by copyright law.
Perhaps the ideas of many are expressed by The Digital Future Coalition (DFC). The DFC is a forty-two-member organization comprised of non-profit and for-profit entities interested in intellectual property law in the digital era. According to American University Washington School of Law Professor and DFC Member Peter Jaszi, "This legislation is a substantial victory for both the creators and consumers of intellectual property because it provides meaningful protection while recognizing the traditional balance between owners' rights and the privileges of legitimate users” .
B. The TEACH Act: Copyrighting the Digital Classroom
On November 2, 2002 President Bush signed into law the 21st Century Department of Justice Appropriations Authorization Act (H.R. 2215), which includes the Technology, Education, and Copyright Harmonization (TEACH) Act of 2001 with technical amendments to the Copyright Act . On March 13, 2001 The United States Senate Judiciary Committee had met to discuss the measure, S. 487, (the Copyright Technical Corrections Act, previously introduced as H.R. 614). Senators Hatch of Utah and Leahy of Vermont co-wrote the bill in order to amend sections 112 and 110 of Title 17 of the United States Code . It gives credence to the report by Marybeth Peters, Register of Copyrights, to extend fair use regarding distance education. The Senate passed the measure in June 2001 . Section 110 of the U.S. Copyright Act includes ten subsections. However, subsections one and two have the most impact regarding the new law . After President Bush signed the TEACH Act, Mark Bohannon, General Counsel & Senior Vice President, Public Policy, issued the following statement: "We welcome the signing into law of the TEACH Act and believe that the Act will play a constructive role in spurring the creation of new, innovative distance education programs…We are pleased that the copyright, university and library communities were able to work effectively together to achieve this legislation." 
2. TEACH in depth
The TEACH Act calls for safeguards against retention or distribution of copies other than as needed to teach and against interference with technological measures used by the copyright owner as well as permitting institutions to upload a copyrighted work onto a server under specific instances as defined by the Act and set out below. This will afford opportunities to allow certain schools to show audio-visual works via Internet and other related means. Let us examine how this is to be achieved.
The Act extends Section 110 as to the expansion of uses allowed to include the performance and display of more works in the distance educational realm, by analog as well as digital means. The TEACH Act amends Sec. 110(2) to broaden permitted uses to include the performance of any work by "reasonable and limited" portions. It also gets rids of the need for a physical classroom, a sort of neutral application regarding medium of information transmission so to speak. The Act clears up instructional activities exempted in Sec. 110(2) as applicable to analog and digital transmissions, allowing in a limited fashion the reproduction and distribution of copies created as part of the automated process of digital transmissions. It also applies technological measures for unauthorized using and access thereto and permits safeguards for copyright owners by requiring institutions using the exemption to promote compliance with copyright law .
The American Library Association, The Association of American Universities and The American Association of University Professors have praised the measure . The Act is far from sweeping. It provides flexibility only for accredited, non-profit educational institutions as part of “mediated instructional activities” to utilize Internet sources in the provision of copyrighted materials to distance education students. This means that the materials used directly relate to and/or for assistance in teaching the particular subject matter or course content.
The TEACH Act is far from a cure-all for educators. TEACH affords rights and protections but in somewhat of a limited manner. There are indeed qualifications to the applicability of the Act The following ten points summarize them:
- When digitizing analog works, the law mandates that no digital version is available, and it must be free from technological protections that would prevent their uses as authorized under Section 110,
- Materials may be uploaded onto a serve to be disseminated only to students enrolled in a secure course in accordance with Section 110,
- The materials cannot be made available to the public especially while the course is not in session,
- Materials should be made available during “classtime” of a regular course offering,
- Retention of materials by the institution is permitted to the extent it is necessary for asynchronous instruction thereof,
- Participating schools would have to utilize technologically sound measures to reasonably prevent those in possession of the materials from using them beyond the class session as well as distributing same in the future ,
- The TEACH Act amends Section 112 regarding ephemeral recordings, i.e., copies can be kept solely for transmission purposes pursuant to Section 110(2),
- Faculty involved in the process must be educated about copyright law according to the Act,
- In general, supervision and policing by the school and instructor are deemed crucial so as to protect the rights of the copyright holder regarding performance or display at the institution , and
- The institution must provide notice to students that materials used are or may be copyrighted as well as informational materials concerning copyright on the whole .
Over the last few years the copyright road took several twists. The DMCA and TEACH Act will face tests in courtrooms across the country. It appears that is it a bit early to tell how new pieces of legislation will affect copyright on the whole. Perhaps amendments or even further statutory guidelines will be necessary by the federal legislature in order to alleviate concerns. Among the problems is the applicability of the fair use exception so relied upon by web-based educators and many others.
However, if we are to advance in the digital millennium, we must compromise between right and rule, between freethinking and structured regulation. Only time will tell as to how these changes in copyright law will ultimately affect our activities in the age of electronic education.
About the Author
Dr. Robert N. Diotalevi, Esq., LL.M., is Program Coordinator and Assistant Professor at Florida Gulf Coast University in Fort Myers, Florida. He has been a Massachusetts lawyer and educator for eighteen years. He became a member of the Florida bar in 2002. Diotalevi possesses four degrees and has been internationally published. His works have been published in SMU School of Law’s Computer Law Review and Technology Journal, The Paralegal Educator, The Journal of Paralegal Education and Practice, and The Online Journal of Distance Learning Administration. He serves as editor for The Online Journal of Distance Learning Administration and The Journal of Paralegal Education and Practice. Diotalevi presents at national and regional law-related conferences as well as at colleges and law schools nationwide.
1. ACLU v. Reno, 929 F. Supp.824 (E.D. Pa. 1996).
2. Brad Templeton, Ten Big Myths about Copyright Explained, http://www.clari.net/brad/copymyths.html.
3. Jessica Litman, The Exclusive Right to Read, 13 Cardozo Arts & Ent. L.J. 29, at 50-51 (1994), http://www.msen.com/~litman/read.htm.
4. See generally Eric Schlachter, The Intellectual Property Renaissance in Cyberspace; Why Copyright Law Could be Unimportant on the Internet, 12 BERKELEY TECH. L.J. 1, Spring 1997. See also Kenneth D. Crews, Copyright Law, Libraries and Universities: Working Paper, http://palimpsest.stanford.edu/bytopic/intprop/crews.html as well as Copyright Basics, available from the U.S. Copyright Office, http://www.copyright.gov/circs/circ1.html.
5. 17 U.S.C. § 101 et seq. (1994). Amendments to Copyright Act since 1976 can be found at http://www.loc.gov/copyright/title17/.
6. Id. § 106. See also http://www.copyright.gov/circs/circ1.html.
7. 17 U.S.C.A § 102(a) (1996).
8. See Feist Publications, Inc. v. Rural Tel. Ser. Co., 499 U.S. 340, 349-50 (1991), http://www.seamless.com/rcl/feist.html. See also Benjamin B. Thorner, Copyright Protection for Computer Databases: The Threat of Feist and a Proposed Solution, 1 VA. J.L. & TECH. 5, Spring 1997, http://scs.student.virginia.edu/~vjolt/graphics/vol1/home_art5.html.
9. 17 U.S.C.A. § 102(a) (1996). See also The U.S. Copyright Website, http://lcweb.loc.gov/copyright/circs/circ01.html and Mark F. Radcliffe, The Law of Cyberspace for Non-Lawyers, The Cyberspace Law Primer, October 1996, http://www.gcwf.com/articles/primer.htm.
10. 17 U.S.C.A. § 101 (1996).
11. Id. § 301.
12. See United States Department of Commerce, Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property 10-11 (1995) (known as the White Paper), Office of Legislative and International Affairs, U.S. Patent and Trademark Office, Box 4, Washington, D.C. 20231, http://www.uspto.gov/web/offices/com/doc/ipnii. See also Kathi A, Cover, The Emperor’s Magic Suit: Proposed Legislation Will Tailor the Copyright Law to Fit the Internet, http://www.sidley.com/cyberlaw/features/emperor.asp.
13. 17 U.S.C. §§ 408 and 409. The United States Copyright Office: Phone: 202-707-3000 (person); Phone: 202-707-9100 (publications); Fax: 202-707-2600; E-mail: LISTSERV@RS8.loc.gov. To subscribe to the Newsnet Issue services, put ”Subscribe US Copyright” in the body of the message; Web: http://lcweb.loc.gov/copyright.
14. See Thomas G. Field, Copyright for Computer Authors, Franklin Pierce Law Center, http://www.fplc.edu/tfield/copySof.htm.
15. Pub. L. No. 105-298, 112 Stat. 2827 (1998). See also 17 U.S.C. § § 302 and 2589.
16. Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853 (codified in 17 U.S.C.A. § 101 (1996)).
17. 17 U.S.C. § 107 (2000).
18. 510 U.S. 569, 114 S. Ct. 1164 (1994). See also Circular 21 (p. 8), Reproduction of Copyrighted Works by Educators and Librarians, U.S. Government Printing Office, Washington, D.C., 1995.
19. 114 S. Ct. at 1174-1179.
20. http://supct.law.cornell.edu/supct/html/92-1292.ZO.htmlSee also June M. Besek, The Evolving Law of Copyright and the Internet: Recent Developments in Fair Use Under the Copyright Act, http://www.cla.org/evolve%20law%2097.pdf and Kenneth D.Crews, Copyright and Distance Education: Lawful Uses of Protected Works, http://www.ihets.org/consortium/ipse/fdhandbook/copyrt.html.
21. 785 F. Supp. 1522 (S.D. N.Y. 1991).
22. 60 F. 3d 913, 916 (2d Cir.1994).
23. The CONFU report is available at http://uspto.gov/web/offices/dcom/olia/confu/conclu1.html.
24. Supra n. 22.
25. 99 F. 3d 1381 and 1393 (6th Cir. 1996).
27. John Marshall University Law School, http://www.jmls.edu/cyber/others.html and Yale University, http://library.yale.edu/%7Eokerson/copyproj.html.
28. Guidelines for Creating a Policy for Copyright Compliance, Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA; http://www.copyright.com/.
29. 907 F. Supp. 1361 (N.D. Cal. 1995).
30. Id. at 1361 and 1374.
31. 923 F. Supp. 1231 (N.D. Cal. 1995).
32. 839 F. Supp. 1552 (M.D. Fla. 1993).
33. 907 F. Supp. 1372-73.
34. See David L Hayes, Application of Copyright Rights to Specific Acts on the Internet, 15 NO. 8, Computer Law 1, August, 1998. See also Eugene A. Burcher and Anna M. Hughes, Casenote, Religious Tech. Ctr. v. Netcom On-Line Communications, Inc.: Internet Service Providers: The Knowledge Standard for Contributory Copyright Infringement and The Fair Use Defense, 3 RICH. J.L. TECH. 5, 1997.
35. 17 U.S.C. §§ 504-506. See also U.S.C. Title 18 § 2319(b).
36. H.R. 2281 in the House of Representatives, and S. 2037 in the Senate (S. 1121, abandoned with the passage of this legislation).
37. http://lcweb.loc.gov/copyright/legislation/hr2281.pdf, http://lcweb.loc.gov/copyright/legislation/dmca.pdf, http://lcweb.loc.gov/copyright/disted/. See also Mark Radcliffe, The Digital Millennium Copyright Act, http://www.gcwf.com/articles/interest/interest11.html. See also The Digital Future Coalition, http://www.dfc.org.
38. Statement by the President, Office of the President’s Press Secretary, The White House, October 12, 1998, formerly at ftp://ftp.aimnet.com/pub/users/carroll/law/copyright/h2281-res.txt.
39. Public Law 105-304 (1998). See also http://thomas.loc.gov and http://www.dfc.org/issues/graphic/2281/2281.html.
40. American Library Association News and Views, June 10, 1998, http://www.ala.org/news/copyright.html as well as Press release, Association of Research Libraries Washington, D.C., Sept. 29, 1998, http://arl.cni.org.
41. The Digital Future Coalition, http://www.dfc.org/dfc1/Archives/wipo/pr101698.html. See generally the DFC’s DMCA Index at http://www.dfc.org/dfc1/Active_Issues/graphic/DMCA_index.html. The DCF also has a timeline for the DMCA located at http://www.dfc.org/dfc1/Active_Issues/graphic/graphic.html. The DMCA is not without its critics or case law. For a list of court cases involving the DMCA, see the Anti-DMCA web site http://thomas.loc.gov/cgi-bin/query/z?c107:S.487.ES:.
43. Supra n. 39. The Act reads as follows:
To amend chapter 1 of title 17, United States Code, relating to the exemption of certain performances or displays for educational uses from copyright infringement provisions, to provide that the making of copies or phonorecords of such performances or displays is not an infringement under certain circumstances, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. EDUCATIONAL USE COPYRIGHT EXEMPTION.
(a) SHORT TITLE- This Act may be cited as the `Technology, Education, and Copyright Harmonization Act of 2001'.
(b) EXEMPTION OF CERTAIN PERFORMANCES AND DISPLAYS FOR EDUCATIONAL USES- Section 110 of title 17, United States Code, is amended--
(1) by striking paragraph (2) and inserting the following:
`(2) except with respect to a work produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks, or a performance or display that is given by means of a copy or phonorecord that is not lawfully made and acquired under this title, and the transmitting government body or accredited nonprofit educational institution knew or had reason to believe was not lawfully made and acquired, the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission, if--
`(A) the performance or display is 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 a governmental body or an accredited nonprofit educational institution;
`(B) the performance or display is directly related and of material assistance to the teaching content of the transmission;
`(C) the transmission is made solely for, and, to the extent technologically feasible, the reception of such transmission is limited to--
`(i) students officially enrolled in the course for which the transmission is made; or
`(ii) officers or employees of governmental bodies as a part of their official duties or employment; and
`(D) the transmitting body or institution--
`(i) institutes policies regarding copyright, provides informational materials to faculty, students, and relevant staff members that accurately describe, and promote compliance with, the laws of the United States relating to copyright, and provides notice to students that materials used in connection with the course may be subject to copyright protection; and
`(ii) in the case of digital transmissions--
`(I) applies technological measures that reasonably prevent--
`(aa) retention of the work in accessible form by recipients of the transmission from the transmitting body or institution for longer than the class session; and
`(bb) unauthorized further dissemination of the work in accessible form by such recipients to others; and
`(II) does not engage in conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent such retention or unauthorized further dissemination;'; and
(2) by adding at the end the following:
`In paragraph (2), the term `mediated instructional activities' with respect to the performance or display of a work by digital transmission under this section refers to activities that use such work as an integral part of the class experience, controlled by or under the actual supervision of the instructor and analogous to the type of performance or display that would take place in a live classroom setting. The term does not refer to activities that use, in 1 or more class sessions of a single course, such works as textbooks, course packs, or other material in any media, copies or phonorecords of 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.
`For purposes of paragraph (2), accreditation--
`(A) with respect to an institution providing post-secondary education, shall be as determined by a regional or national accrediting agency recognized by the Council on Higher Education Accreditation or the United States Department of Education; and
`(B) with respect to an institution providing elementary or secondary education, shall be as recognized by the applicable state certification or licensing procedures.
`For purposes of paragraph (2), no governmental body or accredited nonprofit educational institution 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 of the performance or display of that material as authorized under paragraph (2). No such material stored on the system or network controlled or operated by the transmitting body or institution under this paragraph shall be maintained on such system or network in a manner ordinarily accessible to anyone other than anticipated recipients. No such copy shall be maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary to facilitate the transmissions for which it was made.'.
(c) EPHEMERAL RECORDINGS-
(1) IN GENERAL- Section 112 of title 17, United States Code, is amended--
(A) by redesignating subsection (f) as subsection (g); and
(B) by inserting after subsection (e) the following:
`(f)(1) Notwithstanding the provisions of section 106, and without limiting the application of subsection (b), it is not an infringement of copyright for a governmental body or other nonprofit educational institution entitled under section 110(2) to transmit a performance or display to make copies or phonorecords of a work that is in digital form and, solely to the extent permitted in paragraph (2), of a work that is in analog form, embodying the performance or display to be used for making transmissions authorized under section 110(2), if--
`(A) such copies or phonorecords are retained and used solely by the body or institution that made them, and no further copies or phonorecords are reproduced from them, except as authorized under section 110(2); and
`(B) such copies or phonorecords are used solely for transmissions authorized under section 110(2).
`(2) 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--
`(A) no digital version of the work is available to the institution; or
`(B) 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).'.
(2) TECHNICAL AND CONFORMING AMENDMENT- Section 802(c) of title 17, United States Code, is amended in the third sentence by striking `section 112(f)' and inserting `section 112(g)'.
(d) PATENT AND TRADEMARK OFFICE REPORT-
(1) IN GENERAL- Not later than 180 days after the date of enactment of this Act and after a period for public comment, the Undersecretary of Commerce for Intellectual Property, after consultation with the Register of Copyrights, shall submit to the Committees on the Judiciary of the Senate and the House of Representatives a report 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, including upgradeable and self-repairing systems, and systems that have been developed, are being developed, or are proposed to be developed in private voluntary industry-led entities through an open broad based consensus process. The report submitted to the Committees shall not include any recommendations, comparisons, or comparative assessments of any commercially available products that may be mentioned in the report.
(2) LIMITATIONS- The report under this subsection--
(A) is intended solely to provide information to Congress; and
(B) shall not be construed to affect in any way, either directly or by implication, any provision of title 17, United States Code, including the requirements of clause (ii) of section 110(2)(D) of that title (as added by this Act), or the interpretation or application of such provisions, including evaluation of the compliance with that clause by any governmental body or nonprofit educational institution.
Passed the Senate June 7, 2001.
To amend chapter 1 of title 17, United States Code, relating to the exemption of certain performances or displays for educational uses from copyright infringement provisions, to provide that the making of copies or phonorecords of such performances or displays is not an infringement under certain circumstances, and for other purposes.
44. See Dale Carnevale, Senate Passes a Bill Extending Copyright Exemption to Online Courses, The Chronicle of Higher Education, June 12, 2001, at http://chronicle.com/free/2001/06/2001061201u.htm.. Again the U.S. House followed suit in July 2002. See also Andrea Foster, House Committee Votes to Ease Copyright Restrictions on Distance Education, The Chronicle of Higher Education, July 18, 2002, at http://chronicle.com/free/2002/07/2002071801t.htm.
45. See The Software & Information Industry Association (SIIA) at http://www.siia.net/sharedcontent/press/2002/11-4-02.html.
46.See The U.S. Copyright Office at http://www.copyright.gov/title17/92chap1.html#110, The Copyright Management Center at Indiana University-Purdue University at http://www.copyright.iupui.edu/sec110(2).htm and Cornell University School of Law’s Legal Information Institute at http://www4.law.cornell.edu/uscode/17/110.html.
47.See The TEACH Act, located at http://thomas.loc.gov/cgi-bin/query/z?c107:S.487:, See also Educause at: http://www.educause.edu/ir/library/pdf/ERM01610.pdf and the American Library Association at http://www.ala.org/washoff/teach.pdf, http://www.ala.org/washoff/disted.html, as well as http://www.ll.georgetown.edu/aallwash/ib0720013.html. See generally The Technology, Education and Harmonization Act, S. 487, H.R. 614, incorporated into H.R. 2215, 21st Century Department of Justice Appropriations Authorization Act, at http://thomas.loc.gov/cgi-bin/query/z?c107:S.487.ES: and http://www.copyright.gov/legislation/. Stanford University Libraries has a good summary of recent copyright law and policy at http://www-sul.stanford.edu/geninfo/Provost_Copyright_Reminder.html.
48. See The Association of American Universities at http://www.aau.edu/intellect/copyri.html. and http://www.aau.edu/intellect/SA487Test6.27.01.html. See also The American Association of Law Libraries at http://www.ll.georgetown.edu/aallwash/ib0720013.html Also, The American Library Association’s Washington Office has a paper written by Professor Kenneth Crews, Director, Copyright Management Center Indiana University School of Law-Indianapolis, that summarizes the new standards and requirements established by the TEACH Act at http://www.ala.org/washoff/teach.html.
49. The type and amount of materials proscribed by the new law consist of whole performances of nondramatic literary and musical works; “reasonable and limited” portions of dramatic literary, musical, or audiovisual work; and displays of works, such as images, in amounts similar to typical displays in face-to-face teaching (i.e. stills, e.g.). See The State University of Texas at http://www.utsystem.edu/ogc/intellectualproperty/teachact.htm.
50. The State University of Texas provides a handy checklist to judge if an institution is ready to make use of the TEACH Act. Id.
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