Historically, change in the U.S. Copyright Law has mirrored change within our society. The advent, and then rapid growth, of video and other duplication technologies in the 1970s resulted in the first revision to the Copyright Law since 1909. In the late 1980s and the 1990s, the burgeoning use of the Internet, multimedia and other digital technologies energized our economy, changed the way we communicate and do business, but also stirred discourse about fair use, information access and copyright protection among the educational, proprietary and government communities. It was clear then that the same technology that stood to innovate teaching and learning also posed a large threat to copyright holders who feared the wholesale duplication and infringement of their works.

Initiatives like the National Information Infrastructure-Conference on Fair Use (NII-CONFU), the Educational Multimedia Fair Use Guidelines negotiations initiated by the Consortium of College and University Media Centers (CCUMC) and a series town meetings held across the country enabled intellectual property stakeholders to voice their concerns and opinions about information access in the digital environment.

These initiatives resulted in the resolution of a few important issues like the Statement on Use of Copyrighted Computer Programs (Software) in Libraries¹ and Congressional adoption in a non-legislative report of the Educational Multimedia Fair Use Guidelines². However, they also highlighted the difficulty of reaching consensus on other significant issues, namely the preservation of fair use in the digital environment and access to copyrighted materials in synchronous and asynchronous distance education. In a move to seek a solution and separate distance education and some fair use issues from the then pending Digital Millennium Copyright Act of 1998, Congress charged the US Copyright Office with the task of studying these issues and reporting back its findings in six months. In May of 1999, after a holding a series of hearings and meetings with individuals representing both the copyright holder and educational communities, the Copyright Office submitted to Congress its Report on Copyright and Digital Distance Education: http://lcweb.loc.gov/copyright/disted/

The report addressed a numbers of issues that were near and dear to the education community's heart: the application of the Copyright Law in both synchronous and asynchronous distance education, prior copyright initiatives regarding distance education, licensing arrangements and what - if any - changes should be made in the Copyright Law. Further, the Report's 3 recommendations echoed changes in the Law that educators had long hoped for including the need to:

- clarify the meaning of transmission and to expand coverage of rights to the extent technologically necessary
- review the concept of "mediated instruction" particularly as it relates to asynchronous instruction
- eliminate the requirement of a physical classroom
- add safeguards (e.g., technological protection, PIN-required access) to counteract new risks
- maintain existing nonprofit standards of eligibility
- expand the categories of works covered by section 110(2)
- require the use of lawful copies
- Amend section 112, the ephemeral recordings exemption to allow for asynchronous distance education under   what would be the new section 110(2)

Again, this report was released by the U.S. Copyright Office in mid-1999. No formal efforts Were made to act on its recommendations until just recently.

New TEACH Legislation
On March 7, 2001, Senator Orrin Hatch, chairman of the U.S. Senate Judiciary Committee introduced S.487, the Technology, Education and Copyright Harmonization Act of 2001 (the TEACH Act). As introduced, the TEACH Act amended the Copyright Law allow for - under certain conditions - the instructional broadcasting of copyrighted works during digital distance education.

The bill was referred to the Senate Committee on the Judiciary and the Committee held hearings on March 13, 2001. As was the case during CONFU meetings, the hearing offered intellectual property stakeholders an opportunity to voice their opinions about the copyright law and distance education and the text of the TEACH Act specifically. Following the hearings, individuals representing the copyright holder and education communities met with the intention of reaching consensus on TEACH. On May 17, 2001, with amendment language in place, the TEACH Act was adopted by the Senate Committee on the Judiciary.

So what does TEACH do? It addresses and adopts many of the recommendations made by the Register of Copyrights in the May 1999 Report on Copyright and Digital Distance Education. Specifically, TEACH makes the following revisions to the Copyright Law 4: "Relating to the exemption of certain performances or displays for educational uses from copyright infringement provisions, to provide that the making of a single copy of such performances or displays is not an infringement, and for other purposes." Some highlights include:

- the copyrighted works broadcast or displayed are lawfully made and acquired.
- the performance or display is made by or at the direction of the instructor as part of regularly scheduled   systematic instruction.
- the transmission is made only for students in the class and employees of government bodies as part of their   employment
- the transmitting body/institution institutes copyright policies and provides informational material to faculty,   students and staff regarding the U.S. Copyright Law.
- in the case of digital transmissions, the transmitting body/institution will technologically prevent transmission   beyond the recipients and class session.
- "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 to transmit a   performance or display of a work that is in digital form under section 110(2) to make copies or phonorecords   embodying the performance or display to be used for making transmissions authorized under section 110(2), if:

(1) 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);
(2) such copies or phonorecords are used solely for transmissions authorized under section 110(2); and
(3) the body or institution does not intentionally interfere with technological measures used by the copyright owner to protect the work.'.

See the THOMAS website listed under "Related Internet Resources" of this article for the complete text of S.487.

Certainly the new TEACH Act doesn't address all of the education community's fair use and distance education needs. It does, however, go a long way in changing portions of the Copyright Law that many once thought restricted our ability to provide and support quality distance education in the digital environment.
¹ Lehman, Bruce; 1997. The Conference on Fair Use: Report to the Commissioner on the First Phase of the Conference on Fair Use, Appendix K. Washington, DC: U.S. Patent and Trademark Office
² The Subcommittee on Courts and Intellectual Property, Committee on the Judiciary, U.S. House of Representatives. September 27, 1996
³ The Subcommittee on Courts and Intellectual Property, Committee on the Judiciary, U.S. House of Representatives. September 27, 1996
⁴ Thomas Legislative Information on the Internet Website:
http://thomas.loc.gov/home/thomas2.html - Search by word or phrase (e.g., Copyright) or by bill number (S. 487)

Related Internet Resources

C.E.T.U.S: The Fair Use of Copyrighted Works (includes a sample permission request letter) http://www.cetus.org/fairindex.html

C.E.T.U.S: Ownership of New Works at the University: Unbundling Rights & the Pursuit of Higher Learning
http://www.cetus.org/ownership.pdf (Requires Adobe Reader)

Download Adobe Reader

Copyright Clearance Center (CCC)
http://www.copyright.com/

Fair Use Guidelines for Educational Multimedia
http://www.indiana.edu/~ccumc/mmfairuse.html

FindLaw Internet Legal Resources
http://www.findlaw.com/

Intellectual Property Center
http://www.ipcenter.com/

An Introduction to Copyright, Fair Use, and Intellectual Property: A Tutorial Division of Information Technology, University of Wisconsin-Madison
http://pocahontus.doit.wisc.edu/copyright/copyrighthome.htm

Thomas Legislative Information on the Internet
http://thomas.loc.gov/home/thomas2.html
Search by word or phrase (e.g., Copyright) or by bill number (e.g., S. 487)

University of Texas Copyright Tutorial
http://www.lib.utsystem.edu/copyright/

U.S. Copyright Office
http://www.loc.gov/copyright/

World Intellectual Property Organization: About Intellectual Property Link
http://www.wipo.int/about-ip/en