1. Possible Revision of the Law for Distance Education. The DMCA charges the Copyright Office with the duty to recommend to Congress any changes in the law with respect to the use of copyrighted works in distance education. Given the growth of these activities at IU, this provision is of tremendous importance. Existing "distance-education"
law, Section 110(2) of the Copyright Act, sets sharp restrictions on the use of materials in distance education. The potential magnitude of the Copyright Office study is enormous,
because "distance education" today encompasses multiple forms of transmission, from television to Websites, and includes the vast range of copyrighted materials, from text to software, that enhance the educational experience. This DMCA calls into consideration the teaching content permitted in distance education, the likely need for consistent controls on access and delivery, and the availability of licensing for the use of copyrighted works.
Despite this broad scope, however, the Copyright Office is required to report its findings and recommendations to Congress in April 1999. Those findings and recommendations will likely have momentous consequences for IU and all colleges and universities. The process of review and recommendation, however, gives IU an opportunity to participate in those recommendations and to express its concerns about this issue to the Copyright Office and to members of Congress. The Copyright Management Center, in coordination with the Indiana Partnership for Statewide Education and the Indiana Commission for Higher Education, is taking immediate steps to address these issues. The CMC is organizing a meeting of Indiana’s public and private institutions of higher education, to be held on January 21, 1999, for the purpose of gathering data with respect to distance education and preparing a report for the U.S. Copyright Office and Indiana’s delegation to Congress.
2. Copies of Transmissions. Notwithstanding all of the various limits on the use of materials in transmissions, the DMCA sets new conditions and restrictions under which the university may be able to make copies of our own transmissions made for distance
education, public television, and other purposes.
3. Library Copying and Preservation. The amendments to Section 108 of the Copyright Act offer good and bad news for libraries. First, they clarify and assure that preservation copies of unique or deteriorating works may be made in digital formats;
however, the digital version may be used only on the library premises. Second, they allow the library to copy works if the works are currently in formats that have become
technologically obsolete. Finally, the amendments address a long-standing controversy in Section 108 by specifying that all copies made by the library under Section 108 must include the formal copyright notice, if available, or a specified statement about the
applicability of copyright to the work. The Copyright Management Center has circulated to IU libraries detailed summaries of these developments. Those summaries are available on the CMC website, at the address noted above.
This document was prepared for the Indiana University community by the Copyright Management Center. It is the work of Dwayne Buttler, Coordinator of the CMC; Noemi Rivera-Morales, doctoral student in the IU School of Library and Information Science; and Prof. Kenneth Crews.
This document is for information only and is not legal advice. It is the work of the CMC and does not necessarily reflect the official policy of Indiana University.
Return to CMC's US Copyright Statutes Page
Revised: December 21, 1998
The Copyright Management Center is not part of University Counsel and is not legal counsel to the university or to any members of the university community. A mission of the CMC is to provide information and education services to help members of the community better address their needs.
The information received from the CMC is not legal advice. Individuals and organizations should consult their own attorneys.
Copyright © 2002-2006 Indiana University
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Copyright and Higher Education:
Announcement of Recent Development
December 18, 1997 An Announcement from:
Copyright Management Center Indiana University
Kenneth D. Crews, Director
Indiana University-Purdue University Indianapolis 530 West New York Street
Indianapolis, Indiana 46202-3225
Voice: 317-274-4400 - Fax: 317-278-3326
President Signs New Criminal Copyright Bill:
Raising The Stakes For Electronic Copyright Responsibilities
President Clinton signed into law on December 17, 1997 the "No Electronic Theft Act." It is a tough new law which severely tightens the circumstances under which an individual may face criminal liability for "willful" copyright infringements. This new law had strong support from the software and entertainment industries, and was generally opposed by academic and scientific organizations.
While this law raises anew the consequences of copyright infringement, it also underscores the need for faculty, librarians, students and others at the university to learn enough about copyright in order to reasonably conclude in good faith that their copying and distribution of materials for teaching, research, multimedia development, and Internet applications do not constitute infringement.
What is the New Law?
The "No Electronic Theft Act" would impose criminal liabilities on any individual who infringes copyright for purposes of "commercial advantage or private financial gain." In a more complicated but perhaps more important provision, the law would also impose criminal liability on any person who reproduces or distributes one or more copies of one or more works during a 180-day period, if such works have "total retail value of more than
$1,000." Hence, a faculty member loading materials onto a website or even making photocopies for classroom distribution, if the value of the copies totals more than $1,000, may now actually face the prospect of a criminal violation of copyright.
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These infringements, however, must be made "willfully."
No one is fully certain what a "willful infringement" really means. According to reports and hearings from the House of Representatives, willfulness means "something more than the mere reproduction or distribution of copyrighted works." While criminal liability does not depend on proving the "defendant's state of mind," liability may be established if "the defendant acted with reckless disregard of the rights of the copyright holder." Willfulness may be established by circumstantial evidence, and ignorance of the law does not allow someone to escape criminal liability.
The new law is hardly a stellar piece of legislation, and it is singularly unfriendly to
experimentation for teaching and research. According to David Post, Associate Professor of Law at Temple University and Co-director of the Cyberspace Law Institute: "This is a dreadful piece of legislation. Congress is . . . reacting in a panic and saying there's so much copyright infringement we need to throw people in jail."*
What does the New Law Mean for Educators?
What was Congress seeking to accomplish? This new law is in reaction to a case involving a student at the Massachusetts Institute of Technology who escaped criminal liability for large-scale distribution of software on the Internet. Under previous law he could not be held criminally liable if he sought no financial gain. He could, however, still face civil liability to the copyright owners of the software. That civil liability still remains under the new law.
What is the likely practical effect of this new law? While we are not likely to see widespread criminal prosecution against faculty and others at colleges and universities around the country, the mere possibility of such prosecution may be used in a dramatic way to invoke inappropriate restrictions on new technologies. Universities should not overreact.
How May an Educator Pursue Teaching and Avoid Liability?
Faculty and others may employ several means to reduce the likelihood of prosecution. One means is simply to avoid financial gain and to avoid making copies with a total retail value of more than $1,000. Perhaps the best means to avoid liability is to learn about fair use and other public rights of use of copyrighted materials and to reach reasonable and good-faith conclusions that your activities are within those exemptions. If you can conclude with reasonable grounds that you are within fair use or other specific exemptions, not only can you likely demonstrate no "willfulness" to infringe, but you may also demonstrate that your activities are no infringement at all.
What is the Policy at Indiana University?
The approach of learning about fair use and other rights of use is consistent with the new fair-use policy for Indiana University. That policy was adopted by IU Board of Trustees on December 5, 1997, and it calls on each of us in the IU community to know the
fundamentals of copyright and fair use and to apply that knowledge in a reasonable, good- faith manner as we pursue our innovative teaching, research, and service. For more information, visit the CMC's website
*Professor Post visited the IUPUI campus in February 1997 as part of the "Cyberspace Law Lecture Series." The quotation originally appeared in an article about the same legislation on the "netlynewsnetwork" and it appears here with the kind approval of Professor Post. Return to text.
The Copyright Management Center is not part of University Counsel and is not legal counsel to the university or to any members of the university community. A mission of the CMC is to provide information and education services to help members of the community better address their needs.
The information received from the CMC is not legal advice. Individuals and organizations should consult their own attorneys.
Copyright © 2002-2006 Indiana University
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NOTE: Information on this and other pages will soon be taken offline as this site will be closing.
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New Copyright Law for Distance Education:
The Meaning and Importance of the TEACH Act Prepared by:
Kenneth D. Crews Professor of Law
Director, Copyright Management Center Indiana University School of Law-Indianapolis
Email: kcrews @ iupui.edu Website: www.copyright.iupui.edu
Prepared for:
the American Library Association
in furtherance of a project to develop and disseminate information resources related to copyright and
distance education.
Introduction: The New Legislation
Of great importance to the use of new technologies in innovative education, on October 4, 2002 Congress enacted the “Technology, Education and Copyright Harmonization Act,”
commonly known as the “TEACH Act.” Long anticipated by educators and librarians, the new law will demand a full reconsideration of the ability to use existing copyright-protected materials in distance education. The law is a complete revision of the current Section 110 (2) of the U.S. Copyright Act, and one of its fundamental objectives is to strike a balance between protecting copyrighted works, while permitting educators to use those materials in distance education. If educators remain within the boundaries of the law, they may use certain copyrighted works without permission from, or payment of royalties to, the copyright owner—and without copyright infringement.
The new law offers many improvements over the previous version of Section 110(2), but in order to enjoy its advantages, colleges, universities, and other qualified educational
institutions will need to meet the law’s rigorous requirements. Educators will not be able to comply by either accidental circumstances or well-meaning intention. Instead, the law calls on each educational institution to undertake numerous procedures and involve the active participation of many individuals.
This paper principally summarizes the new standards and requirement established by the TEACH Act. The statutory language itself is often convoluted and does not necessarily flow gracefully. This paper accordingly isolates the various requirements and benefits of the new law and organizes them in a manner that may be helpful to educators and others seeking to understand and comply with the law. This paper will also suggest strategies and
implementation methods that an educational institution may choose to follow. In general, this paper will outline the benefits of the TEACH Act and organize the law’s requirements Search
into three groups of duties that may be assigned to three divisions within a college or university for implementation: duties of institutional policymakers; duties of information technology officials; and duties of faculty members or other instructional staff. In this multifaceted process, librarians will also find an important role.
Background of Copyright Law
To understand the magnitude of the issues at stake, one needs to comprehend not only the growth of distance education, but also the expansion of copyright protection. Much of the material used in educational programs—in the classroom or through “transmission”—is protected under copyright law. Copyright protection vests automatically in nearly all works that are “original works of authorship” and “fixed in any tangible medium of
expression” (Section 102(a)). Hence, most writings, images, artworks, videotapes, musical works, sound recordings, motion pictures, computer programs, and other works are
protected by copyright law. That protection applies even if the work lacks any form of
“copyright notice” and is not registered with the U.S. Copyright Office. Some works are in the “public domain” and do not have copyright protection. For example, works of the U.S.
government are generally barred from copyright protection, and the copyrights on other works eventually expire. Copyrights today usually last through the life of the author, plus seventy years. Quite simply, the law protects vast quantities of works for many, many years.
When educators use any of these works in their teaching, they are using copyright- protected materials. Among the rights of copyright owners are rights to make copies and rights to make public performances and public displays of the works. An assembled—or even dispersed—group of students may well constitute the “public” under the law.
Consequently, educators frequently incur possible violations of owners’ rights whenever they copy materials as handouts, upload works to websites, “display” slides or other still images, or “perform” music, videos, and other works. In the context of traditional, face-to- face teaching, educators long have debated the application of “fair use” to making copies, and the Copyright Act since 1976 has included a relatively simple and broad provision allowing “performances” and “displays” in the face-to-face classroom setting (Section 110 (1)). The rules for distance education, however, are significantly different. Both the meaning of fair use and the details of the specific statute (Section 110(2)) become much more
rigorous when the materials are uploaded to websites, transmitted anywhere in the world, and are easily downloaded, altered, or further transmitted by students and other users—all posing possible threats to the interests of copyright owners.
Context of Distance Education
Comprehending the practical implications of the new legislation also requires understanding the congressional vision of “distance education” and the relationship between educators and the institution. The TEACH Act is a clear signal that Congress recognizes the importance of distance education, the significance of digital media, and the need to resolve copyright clashes. The new law is, nevertheless, built around a vision that distance education should occur in discrete installments, each within a confined span of time, and with all elements integrated into a cohesive lecture-like package.
In other words, much of the law is built around permitting uses of copyrighted works in the context of “mediated instructional activities” that are akin in many respects to the conduct of traditional classroom sessions. The law anticipates that students will access each “session”
within a prescribed time period and will not necessarily be able to store the materials or
review them later in the academic term; faculty will be able to include copyrighted materials, but usually only in portions or under conditions that are analogous to conventional teaching and lecture formats. Stated more bluntly, this law is not intended to permit scanning and uploading of full or lengthy works, stored on a website, for students to access throughout the semester—even for private study in connection with a formal course.
The TEACH Act suggests another general observation: Many provisions focus entirely on the behavior of educational institutions, rather than the actions of instructors. Consequently, the institution must impose restrictions on access, develop new policy, and disseminate copyright information. The institution is allowed to retain limited copies for limited purposes, but the statute indicates nothing about whether the individual instructor may keep a copy of his or her own instructional program. Most important, educational institutions are probably at greater risk than are individuals of facing infringement liability, and individual instructors will most likely turn to their institutions for guidance about the law. These circumstances will probably motivate institutions to become more involved with oversight of educational
programs and the selection and use of educational materials. This substantive oversight may raise sensitive and important issues of academic freedom.
One consequence of these developments is apparent: The pursuit and regulation of distance-education programs will become increasingly centralized within our educational institutions. Because the law calls for institutional policymaking, implementation of
technological systems, and meaningful distribution of copyright information, colleges and universities may well require that all programs be transmitted solely on centralized systems that meet the prescribed standard. Because the law permits uses of only certain
copyrighted materials, institutions will feel compelled to assure that faculty are apprised of the limits, and some colleges and universities will struggle with whether to monitor the content of the educational programming.
Some news announcements anticipating the TEACH Act have suggested that the use of materials in distance education will be on a par with the broad rights of performance and display allowed in the face-to-face classroom. This characterization of the law neglects the many differences between the relevant statutes. In the traditional classroom, the Copyright Act long has allowed instructors to “perform” or “display” copyrighted works with few
restrictions (Section 110(1)). By contrast, both the previous and the new versions of the statute applicable to distance education are replete with conditions, limits, and restrictions.
Make no mistake: While the TEACH Act is a major improvement over the previous version of Section 110(2), the law still imposes numerous requirements for distance education that reach far beyond the modest limits in the traditional classroom.
Benefits of the TEACH Act
The primary benefit of the TEACH Act for educators is its repeal of the earlier version of Section 110(2), which was drafted principally in the context of closed-circuit television. That law permitted educators to “perform” only certain types of works and generally allowed transmissions to be received only in classrooms and similar locations. These restrictions, and others, usually meant that the law could seldom apply to the context of modern, digital transmissions that might utilize a range of materials and need to reach students at home, at work, and elsewhere. The new version of Section 110(2) offers these explicit improvements:
Expanded range of allowed works. The new law permits the display and performance of nearly all types of works. The law no longer sweepingly excludes broad categories of