Copyright, Fair Use, and Distance Education: A Town Meeting

Citation

Armstrong, K.L. and Scepanski, J.M. (2000), "Copyright, Fair Use, and Distance Education: A Town Meeting", Library Hi Tech News, Vol. 17 No. 9. https://doi.org/10.1108/lhtn.2000.23917iac.001

Copyright, Fair Use, and Distance Education: A Town Meeting

Kimberly L. Armstrong and Jordan M. Scepanski

Introduction

In collaboration with the National Initiative for a Networked Cultural Heritage (NINCH), the Triangle Research Libraries Network (TRLN) held a town meeting on copyright, fair use, and distance education on 7 March in Chapel Hill, North Carolina. The event was part of a series of conferences NINCH has been sponsoring around the country following on a similar set of meetings held in 1997/98 that explored intellectual property issues. Participants were drawn largely from North Carolina, particularly from TRLN's four member institutions ­ Duke University, North Carolina Central University, North Carolina State University, and the University of North Carolina at Chapel Hill ­ but attendees hailed from throughout the state and surrounding areas as well.

The meeting was organized into three major parts. Following greetings from TRLN officials and remarks by NINCH executive director, David Green, current legislative developments in the areas of copyright and distance education were summarized, the audience was engaged in a discussion of salient issues, and a panel of librarians conducted a role play which set some of the matters discussed in a specific higher education context.

Review of Current Legislative Developments

Peggy Hoon, scholarly communication librarian at North Carolina State University, provided a primer on copyright basics, including the current state of copyright law and pending legislation which could impact distance education. Her presentation was designed as an introduction for an audience whose work in educational settings and experience with copyright was varied. Hoon's talk also was intended to prepare the audience for participation in the discussion to follow.

Distance education has existed in many forms for decades. It is not something new that has come along with the Internet. Instead, the Internet has become a tool for delivering instruction. The working definition of distance education used at North Carolina State University is "an educational process that is physically remote from the main campus and in which teacher and learner are separated in time and space". The goal for distance education is "equality in education for the distance learner and the on-campus learner", Hoon said. Both the teachers and the students involved in distance education expect that the content (course materials and library materials) provided in the distributed learning environment is the same content made available to on-campus learners and that it will be accessible at an affordable cost. "Affordable quality distance education is inextricably linked to copyright law".

Copyright is an intellectual property right that covers all types of original works (literary, musical, dramatic, pictorial, graphic, motion picture, sound recording, choreographic, architectural). Copyright protection begins as soon as an original work is fixed in a tangible medium of expression. Publication and/or registration are not required for a work to be copyrighted, but lack of registration might limit the damages for which a copyright holder can sue if infringement occurs.

Copyright holders have some exclusive rights. Copyright holders can reproduce the work, prepare derivatives, distribute copies, publicly perform the work, and publicly display it directly or by telecommunication. There are limitations on exclusive rights described in Sections 107 and 110 of the copyright law. Section 107 describes "Fair Use" of copyrighted works and Section 110 covers the "Exemption of certain performances and displays".

In traditional teaching, Section 110 (1) of the copyright law clearly allows faculty and students to perform or display a work if such performance or display takes place face-to-face, is at a non-profit educational institution, occurs in a classroom or a similar place devoted to instruction, and if the audiovisual work is lawfully acquired. The issue arising in distance education has to do with Section 110 (2): the broadcast exemption. Under this exemption teachers and students may perform a non-dramatic literary or musical work or display a work by or in the course of transmission if three criteria are met.

First, the performance or display must be a regular part of the systemic instructional activities of a nonprofit educational institution. Second, it has to relate directly and be of material assistance to the teaching content of the transmission. Third, the transmission is made primarily for reception in classrooms or similar places normally devoted to instruction or to persons with disabilities or other special circumstances which prevent their attendance in the classroom or similar places. The third condition greatly limits the material that can be used in distance education. However, there are several developments in the US Congress and the US Copyright Office that are beginning to impact distance education.

A portion of the Digital Millennium Copyright Act (DMCA) that deals with digital technologies (Section 403) has not been implemented because of the complexities of the issue and the varying views of a number of the stakeholders involved. The US Copyright Office was directed to conduct a study of the "Promotion of distance education through Digital Technologies"[1]. That study was released in 1999. Some of its key recommendations include the following:

The law should authorize reproduction of copyrighted material to the extent necessary to transmit it for teaching.

There should be an emphasis on the concept of mediated instruction.

The law should eliminate the requirement of a physical classroom.

Safeguards should be put in place to counteract new risks to copyright.

This report also recommends that the law expand the scope of works permitted under Section 110(2), and that Congress confirm that fair use applies in the digital environment. Specifically not addressed in the report were database-licensing issues, library services such as online reserves, and the production and use of coursepacks.

Hoon also covered Section 1201 of the DMCA known as the "Anti-circumvention Provision". These are rules intended to protect copyrighted material in the digital environment. This section states that "no person shall circumvent a technological measure that effectively controls access to a work protected by copyright". The law will take effect in October 2000 and the Library of Congress is responsible for reporting whether users of copyrighted works, such as librarians and teachers, are adversely affected by circumvention prohibition.

Additional language in the DMCA, Section 1201(2), protects copyright holders by making it a "violation to manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, or component, that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a copyrighted work".

Hoon closed her section by inviting questions, stressing once again that copyright law is the key to affordable, quality distance education. She urged the audience to be at the table whenever there is a dialogue or debate on the use of materials in the digital environment. Often the stakeholders who have the most influence over legislation are the content providers, because their revenue streams depend on copyright protections. Universities and libraries have been slower to enter into the discussion as users and as protectors of fair use.

Copyright, Fair Use, and Distance Education ­ A Dialogue

James Boyle, Professor of Law at American University, and a specialist in intellectual property matters, then engaged the audience in the "town meeting" portion of the afternoon. Rather than following up with a lecture or a speech on the complex issues introduced by Peggy Hoon, he posed a number of teaser questions and challenging statements designed to involve attendees in a dialogue about their work in the academy and how it might be affected by these latest legal developments. The audience included faculty members from a range of disciplines, librarians, administrators, publishing personnel, technical staff, and others involved in higher education, so the conversation proved to be lively.

Boyle opened this part of the meeting with some background on education and its importance in the American economy. Education currently makes up the second largest segment of the US economy, involving 600 billion dollars annually. The cost of a college education is having an increasing impact on family finances, taking a larger and larger percentage of income. As Hoon stated earlier, he said, distance education is not new, but the Internet has so transformed it that it now has begun to rival classroom teaching. Distance education has the advantage of relatively low cost. Institutions can upsize their programs at far smaller expense than it would take to do so for a traditional bricks-and-mortar campus expansion. Distance education also is very democratic, potentially reaching a broader population.

The first question Boyle raised to begin the discussion was, "What will distance education really look like in the future?" He asked if the most prestigious schools would control the market because their degrees, now available through distance education, would be the most desirable, or if state universities will be invigorated by new opportunities to serve the citizens of their states. The response received was that many universities would vie for position in the online market. One participant mentioned the type of content that will be available in distance education offerings. Will it be the traditional humanities or social sciences courses now taught on campuses or will the content be more vocational, focused on giving students skills that are immediately marketable? Boyle suggested that colleges and universities might define specialty or niche areas in which they can be competitive in the distance education marketplace. There may be a divergence in types of education. Students might choose either the "full-ride" or traditional education, attending college on a campus with all of the socialization and maturation experience implicit in such, or the distance education environment, which may be more vocational in nature.

A second question posed was, "How will changes in the marketplace change the role of the academic professions?" Boyle asserted that librarians, researchers, and academics have long been stakeholders in protecting public domain. However, the marketplace is being driven by for-profit entities that support privatization of all digitized material. The audience was in agreement that safe harbors for fair use in the distance education environment must be expanded and that it is critical for all types of academics to create and articulate a defensible position for fair use in this new environment. However, Boyle continued the discussion with the notion that faculty may actually be tempted by the for-profit sector to create online content for a fee. Since universities typically do not assert copyright over faculty publications (unlike the model for patents where the university shares in any revenue derived from the research resulting in a patent), faculty members conceivably could create and sell distance education materials that would not necessarily be provided by their own universities.

A third topic generated much interest and discussion. Boyle indicated that it has been said fair use exists only because of the enormous transaction costs that would be involved in obtaining permissions for every use of a copyrighted work. But the Internet has reduced overhead to a point where transaction costs for use of a work can be measured by the chapter, the page, and even the paragraph. In other words, fair use might now be characterized as passé, an old model that can now be replaced. "Wouldn't a no-fair-use, profit-driven environment introduce innovation and dynamism to the education market because it encourages the development of better material?" Boyle asked. The response was that it would be slow and difficult to move entirely to a pay-as-you-read or pay-per-view system. Payment likely would result in people valuing information differently, with reading and study preferences altered by the cost of the materials. A for-profit environment also might mean that certain material might never be available online because it would not be cost efficient to produce for a small readership.

Boyle then directed the discussion to roles and policies. He agreed that academics have strongly held opinions about copyright and fair use but that they also find it hard to explain why copyright is so important to their educational mission. So what should be the position of the educational community on use of material for teaching and learning over the Internet for distance education purposes? What should be the role of university legal staffs as advocates for the public domain? Boyle suggested that faculty challenge universities' legal counsels to create clear, understandable guidelines on distance education. He also encouraged faculty to push counsels to become as familiar with copyright issues as they are with other intellectual property matters and, indeed, to become advocates for the public domain along with faculty and librarians.

Concluding, Boyle asked what themes or general principles of distance education had emerged from the discussion. The audience responded with three: First, one "should be able to do anything in distance education that ... can be done in the classroom". Second, we should "pay one time for copyrighted material but be able to use it liberally in teaching". Third, "students who are physically distant from the campus should get the sameservices as students on campus".

A Role Play

The third segment of the meeting offered a humorous but nicely informative panel presentation in which five administrators drawn from TRLN libraries explored distance education, fair use, and copyright matters at a fictitious university. The university's chief executive officer, head legal counsel, a faculty member, a librarian, and a major publisher's representative were represented on the panel. Deborah Jakubs of Duke, Anne Klinefelter and James Curtis from UNC-Chapel Hill, Benjamin Speller of NC Central, and Chris Filstrup from NC State considered the following scenario involving a professor's preparation of an online course and portrayed the varying interests and perspectives at play.

Dr C, a professor of interdisciplinary studies at Prestigious Southern University (PSU), teaches a unique and specialized course which he has developed over a number of years of classroom instruction. The course is a popular one with PSU students and is based upon Professor C's extensive research. He is an internationally recognized scholar. His work ­ and the course ­ has significantly enhanced PSU's reputation. Other universities with similar programs would like to offer such a course, recognizing it would fit nicely into their curricula, but they have neither the resources nor faculty expertise to readily do so.

PSU's chancellor (the university's chief executive officer) is most interested in building up the institution's limited distance education offerings and has asked the vice chancellor for academic affairs and the deans to identify faculty members who could relatively quickly adapt their courses for provision online. She and her administrative colleagues also entertain the possibility that attractive classes might be licensed in some fashion to other universities. Professor C's course is an obvious choice and he has been provided released time and substantial staff technical assistance to convert his syllabus into a digital format.

The university library, meanwhile, recently has installed an electronic reserves system and has solicited from the faculty materials which can be added to it. They especially are interested in having Professor C provide his bibliography and other supporting items, given the broad appeal of the course and the fact that it enrolls a large number of students each semester. With Professor C involved in the preparation of a "virtual" class, the library also sees digitization of his course materials as an excellent means of providing its services at a distance.

The nature of the course provides opportunity for Professor C to use a wide variety of learning materials: traditional texts; periodical articles; audiovisual works of all types including visual images taken from film and television; music; graphs; drawings; and items downloaded from the World Wide Web. Among these resources are many that are copyrighted. Professor C has not sought permission from the copyright holders to use these materials in his class. Quite a few of the items the professor uses while teaching, and which he expects his students to consult outside of class, are taken from the products of Big Publishing Conglomerate (BPC, Inc.).

Professor C provides the library with citations, sources, and, in some cases, the actual materials he would like to have placed on electronic reserves. He directs university technology personnel to add all of these resources to his course Web page. However, as he hears about the university's plans to market the course and even, perhaps, to license it to other institutions, he begins to think about what benefits will accrue to him and his department from this effort. He decides that before he agrees to teach online, he should speak to the administration. The library has questions about mounting on its server some of the materials Professor C has asked be placed on reserve and is seeking the opinion of university counsel. Through an employee who is enrolled part time at PSU, and who is one of Professor C's students, BPC has been alerted to the unauthorized use of many of its copyrighted items at the university. It determines that a meeting with PSU officials is in order.

During interaction with her colleagues the university's chancellor saw her responsibility as maintaining and enhancing the reputation of the university, assuring that her institution was in the forefront of educational developments, and protecting the university's investment in its intellectual property. Of major concern to the university's chief counsel was making certain that the institution did not become embroiled in unnecessary and costly litigation but at the same time being certain to uphold its legal rights. This legal staffer also sought to educate employees on their rights and responsibilities. The faculty member's objective was advancement of knowledge through legitimate use of the research and scholarship of others while providing the most up-to-date and comprehensive course possible for his students. He expressed a strong interest in safeguarding his intellectual property. Providing open and comprehensive access to information necessary for teaching and learning at the university and assisting faculty and staff in adhering to the law while asserting all of their legal rights were on the librarian's agenda. The publisher had concerns about copyright incursions in academia. He expressed a desire for good profit margins, which would assure the viability of his company and he wished to realize maximum sales in the higher education community and beyond. The complementary and conflicting interactions ­ added to by lively role playing by some members of the audience ­ brought the town meeting to an entertaining, instructive, and successful conclusion.

Note

1. http://lcweb.loc.gov/copyright/disted/

Kimberly L. Armstrong (armstrong@trln.org) is Information Resources Program Officer and Jordan M. Scepanski (jordan@trln.org) is Executive Director, Triangle Research Libraries Network, Chapel Hill, North Carolina.