OMDE 0614--Limitations on Fair Use in Digital Distance Education

Holly Denney
OMDE 614 - 9040
Assignment #5
December 13, 2001

Limitations on Fair Use in Digital Distance Education

Introduction

The Copyright Act (Act) of the United States contains important protections for the owners of copyrightable works: the rights to make copies; create derivative works; distribute, display and perform works publicly; and moral rights, those of integrity and attribution. Those protections were developed in accordance with the Constitutional Provision respecting copyright,

The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries (title 17, U.S. Code, p. ii).

Within the Act, there are provisions that limit the owner's exclusive rights, notably fair use. However, these limitations are interpreted differently for digital distance education as compared with face-to-face classroom instruction. Rather than finding means by which fair use can meet the needs of both, legislation has imposed arbitrary controls on distance digital education's use of copyrighted materials. In some cases, these controls restrict digital distance education's ability to deliver comparable educational experiences.

The amendments to the Act with implications for digital distance education include the Technology Education and Copyright Harmonization Act (the TEACH Act) and the Digital Millennium Copyright Act (DMCA).

Legislation outside the Act has been proposed that would bring the U.S. Copyright Law into harmonization with the copyright laws of other countries - the Uniform Commercial Code 2B (UCC2B), otherwise known as the Uniform Computer Information Transactions Act (UCITA), a "proposed state law that seeks to create a unified approach to the licensing of software and information" (ARL, 2000). All of these have significant implications for the use of copyrighted work within digital distance education.

§ 107. Limitations on exclusive rights: Fair use.

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-

1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2) the nature of the copyrighted work;
3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. (title 17, U.S. Code, pp. 16-17)

The doctrine of "fair use" is an important part of our educational tradition. Yet for any institution considering digital distance education, there are significant differences that must be understood and addressed as an integral part of the planning process. Since the Act was written before the widespread use of digital media, the Act understandably did not provide for digital media's use in either traditional face-to-face classrooms or in digital distance education. The digital environment raises fair use issues that have yet to be adjudicated.

Interpretations of Fair Use

One of the strengths of "fair use" is that there is room for interpretation. Unfortunately, the interpretation is not always consistent. Within other sections, notably the "first sale" doctrine and "educational performance and display," the language is specific enough that digital distance education is precluded from offering to its students services and educational experiences comparable to those afforded face-to-face students. Amendments to the Act, the TEACH Act and the DMCA, have added further impediments. Should the states adopt UCITA as it is written, there will be "adverse impacts with respect to copyright, mixed transactions, and reverse engineering" (ARL, p. 2). Specific definitions, or "bright lines," are being added that are not in the best interest of digital distance education.

Generally, the courts have favored nonprofit educational institutions' use of copyrighted materials. In two case law findings, Kinko's and MDS, the courts' rulings considered the nature of the copier not the ultimate users, the students. The Act's language does reference nonprofit educational purposes. It is assumed that the for-profit entrants into the digital distance education market are complying with seeking permission for and paying fees for their use of copyrighted materials. However, should a nonprofit educational institution enter into consortial agreements with for-profit entities, consideration must be given to how a court would view the whole entity in the event of a "fair use" challenge by publishers.

Generally, the courts have found for "fair use" when using copyrighted material of a factual nature. Should the European Directive for database protection be incorporated into the Act or should separate legislation be enacted, this precedent may not stand. A challenge could arise over the use of digital databases of factual content for educational purposes. The Act is unique in recognizing the need for a balance between owners' rights and users' privileges. Other countries' copyright laws are predicated in economic benefit for the creator of the intellectual property.

"Fair use" permits multiple copies for educational purposes of a non-substantial amount of the entire work. Sales of published works are important to ensure that "Writings and Discoveries" continue to be made available to the public. Copy machines made it easier for students to have full copies of articles, chapters, and even entire books, often for less than buying a copy from the publisher. Scanners make it very easy and very inexpensive to digitize entire works. Once the work is available in digital format, controlling how it is used is much more difficult.

At issue is the ease and low cost of making and distributing the multiple copies permitted under "fair use." The interests of publishers understandably include the cost of doing business, which is at odds with the desire of scholars for the wide distribution of their work. The Act is an attempt to balance those divergent interests. Up until the wide availability of digital means of reproduction and distribution, the balance provided was adequate. A new balance is needed, but the task of doing so is made more difficult because of the rapid growth and development of the digital technologies.

Two other sections of the Act with particular significance to digital distance education are the "first sale" doctrine and "educational performances and displays."

"First Sale" Doctrine

Section 109, the "first sale" doctrine, allows for "the owner of a particular copy or phonorecord lawfully made under this title … to sell or otherwise dispose of the possession of that copy or phonorecord" (Title 17, U.S. Code, 109(a)). The owner is not permitted to retain the original and distribute copies of it, unless that distribution falls within fair use.

One challenge with digital distance education is the ease with which copies are made, retained, and distributed. There are no limits on the number of copies that can be distributed, instantaneously and at no cost, through e-mail. Litman (1997) proposes a workable solution, one easily implemented in the digital environment. The owner may distribute as many originals as s/he owns legally. By sending an original to someone else, the owner relinquishes possession.

UCITA seeks a different solution - selling access rights rather than ownership. This solution may be valid for individuals who have specific needs, and it may be a less costly solution for those individuals. But selling access provides challenges for librarians who are providing support for the digital distance education students. Services, such as electronic reserves, that had been free under fair use provisions may now be available only at a cost to the student.

Further restrictions in UCITA include limiting access to a book that is sold with digital media. In this event, a library's ability to circulate the book would be tied to any usage restrictions placed on the software. Shrinkwrap or click-through licenses would be regarded as binding, legal contracts, despite the fact that the purchaser was not a party to negotiating the terms of the license. Reverse engineering, the process whereby purchasers can make adaptations to make the software fit specific needs, would be illegal.

Educational Performances and Displays

The TEACH Act is intended to provide designated institutions (1) "fair use" of digital transmission of performances or displays of copyrighted materials. However, it contains clauses that appear to be an attempt to constrain the designated institutions to uses that more closely resemble traditional classroom instruction. Specifically, it extends the definition of "classroom" to allow for digital transmission (2) while requiring that the transmission be "controlled by or under the actual supervision of the instructor (3)" and that material be "maintained…[no] longer…than is reasonably necessary (4)".

In addition, the language might limit or restrict use by institutions that cannot afford the highest level of technological protection. The Act exempts the transmitting institution from liability for infringement for "transient or temporary storage of material [from] the automatic technical process of a digital transmission" as long as the material is access protected and removed from the system or network once transmission is completed (5), the transmission is "made solely for (6)" the enrolled students, and the digital transmitter "applies technological measures that reasonably prevent…retention …and…further dissemination" (7).

One other interesting point is that the transmitting institution is required to implement policies that promote compliance with copyright (8). While this is an additional burden for the transmitting institution, there is value within this requirement. The differences are notable between "fair use" in a face-to-face classroom and in digital distance education.

The Future

Consortia may increasingly be the answer for digital distance education. The costs of the required technological controls and personnel to monitor for compliance would be spread over a larger student population. Yet, consortia partners will have to be chosen with two specific criteria in mind - the TEACH Act adds "accredited" in front of "non-profit educational institutions and governmental bodies."

Technology controls may allow the broadcast of a performance piece yet prevent the recipients from saving the broadcast onto their storage devices or making copies. This technology would combine a "live" performance with a "view on demand" feature that allows for the students' asynchronous use. As the TEACH Act is written, the transmitting institution must remove the transient copy once the transmission is completed. One of the benefits of digital distance education is the students' ability to determine when they will participate in the class activities. While the TEACH Act does permit transmission, the restrictions on the transmission limit the asynchronous nature of distance education. A reasonable alternative would be to limit a student's access to one time, the same as s/he would have in a face-to-face classroom, and permit the copy to remain on the server while the related module is being discussed.

Digital media will continue to develop and will eventually reach the point that in usability it is virtually indistinguishable from today's print materials. Within those developments will be protection mechanisms that will safeguard the interests of the copyright owners while at the same time permitting "fair use" of the copyrighted materials.

Of significance will be the popular acceptance of access fees to the material on the Internet. These fees will be structured to provide the benefits currently conveyed through a purchase transaction. What will be missing is the ability to send multiple originals of a given document whether via e-mail attachment or copying into the body of an e-mail. Site links could be sent within e-mail, but the person desiring access to the document would first see a screen with an abstract. To view the entire document, the recipient would either enter his/her password or transmit payment to the copyright owner. However, should an educational subscriber wish to provide copies to enrolled students, a version of that document not unlike a photocopy of it would be transmitted. In keeping with the case law of Kinko's and MDS, however, the transmission would have to originate within the educational institution; for-profit intermediaries would be required to obtain permission from the copyright owner.

There will be considered judgments needed regarding the market value of any particular piece of intellectual property compared with the cost of protecting it. An institution may decide that its contribution to a faculty member's copyrightable intellectual property is not sufficient to warrant either the cost of defending any infringement actions or the cost of technological protection. That judgment is made before the work is done, and the determination is a part of a written contract signed by all parties.

Copyright laws offer reasonable lengths of protection to the copyright owners of intellectual property. At the end of the protection period, intellectual property moves into "the commons" (Lessig, 1999) where it may be used freely. Some creators of intellectual property may find more value in their work's open availability rather than in any access fees they might receive. Open access may become easier to offer, particularly if the costs of making the intellectual property available on the Internet are minimal.

The quantity of intellectual property available will be greater than at any time in history. Without the costs of printing, warehousing, and distribution, materials may be available forever. The limiting factors may be the sufficiency of computer storage space and the frequency of access to any particular text. The quality of intellectual property is a separate issue, one that should be addressed in a manner similar to peer and editorial review of work.

Conclusion

Digital distance education is a viable option for meeting the demand for education. However, digital distance education must be allowed to operate within the same rules as traditional face-to-face education. Fair use is an important provision of the Act, one that provides the latitude to fulfill the stated Constitutional intent.

Digital technology offers extremely efficient and effective ways to store and share knowledge. Copyright protection must be a part of the digital environment, but the protection should be structured in ways that serves the best interests of all users as well as the owners of intellectual property. Technological protection devices are a part of the answer.

An immediate solution is for institutional policy to require that copyright permission will be sought for all educational uses of copyrighted material. The institution's Intellectual Property office should provide the human resources to support this mandate rather than expect the faculty to assume this responsibility. The payment of permission fees may be factored into the fees assessed students.

A future solution is for the educational community to better understand the Act and the rationale behind it. With that knowledge, the educational community will explore how copyright rights can be unbundled to allow for fair use of materials for all educational purposes.

The solutions should not be unnecessarily complex, and it may be too early to write definitive legislation for the digital distance education environment. The technological future is no more predictable today than it was for the legislators in 1976.

References *

Association of Research Libraries. (2000). UCITA: Summary and implications for libraries and higher education. Retrieved from the World Wide Web December 3, 2001: http://www.arl.org/info/frn/copy/ucitasum.html

Copyright Law of the United States of America. (2000, April). Retrieved from the World Wide Web September 4, 2001: http://www.loc.gov/copyright/title17/

Lessig, L. (1999). Code and the commons. New York: Fordham Law School, Conference on Media Convergence. Retrieved from the World Wide Web November 18, 2001 http://cyber.law.harvard.edu/works/lessig/fordham.pdf

Litman, J. (1997). New Copyright Paradigms. In L. Gasaway (Ed.), Growing pains: Adapting copyright for libraries, education, and society (pp. 63-84). Littleton, CO: Fred B. Rothman & Co.

Sources Also Consulted *

Basic Books, Inc. v. Kinko's Graphics Corporation, 758 F. Supp. 1522. (1991). Retrieved from the World Wide Web on October 22, 2001 http://fairuse.stanford.edu/primary/cases/c758FSupp1522.html

Gasaway, L. (Ed.). (1997) Growing pains: Adapting copyright for libraries, education, and society. Littleton, CO: Fred B. Rothman & Co.

Princeton University Press v. Michigan Document Services. (1996). Retrieved from the World Wide Web on October 22, 2001 http://www.law.emory.edu/6circuit/feb96/96a0046p.06.html

Technology, Education, and Copyright Harmonization Act of 2001. (2001). Retrieved from the World Wide Web on November 12, 2001 http://thomas.loc.gov/cgi-gin/query/z?c107:S.487 (link broken - substitute site as of October 12, 2002 http://www.oit.umd.edu/pp/relations/teach/ )

United States Copyright Office Summary. (1998). The Digital Millennium Copyright Act of 1998. Retrieved from the World Wide Web on November 18, 2001 http://www.loc.gov/copyright/legislation/dmca.pdf

1 Includes accredited non-profit educational institutions and governmental bodies.
2 110(2)
3 Act, explanatory paragraph following 110(2)(D)(ii)(II)
4 Act, third explanatory paragraph following 110(2)(D)(ii)(II)
5 Act, third explanatory paragraph following 110(2)(D)(ii)(II)
6 The original language in 110(2)(C) required only "made primarily for."
7 Act, 110(2)(D)(ii)(aa) and 110(2)(D)(ii)(bb)
8 Act, 110(2)(d)(i)

* All links verified as of October 12, 2002.