Will the distance learning provision be amended?

Author:Gasaway, Laura
Position:Copyright Corner

Some of my columns have detailed the difficulties that Section 110(2) of the Copyright Act causes for distance education (see Information Outlook, November and December 1998). Compared to the broad exemption for performances and displays in face-to-face teaching activities in a nonprofit educational institution, the distance learning section is narrow in its definition of what may be done without seeking permission from the copyright holder. The Digital Millennium Copyright Act contained a requirement that the Copyright Office conduct a study of modern distance education and make recommendations about whether and how the statute should be amended to facilitate digital distance education.

The Copyright Office's Report on Distance Education was published in May 1999 (see Information Outlook, October 1999). This month I will focus on efforts to embody the Register's recommendations into a bill and the status of the effort to amend Section 110(2).

Following publication of the Register's Report, hearings were held before the House Subcommittee on Courts, the Internet, and Intellectual Property in June 1999. In addition to the Register of Copyrights, only five witnesses were invited to testify. Two were representatives of copyright holders, two were representing the user community, and one was representing iCopyright, an organization created by publishers primarily to provide reproductions of printed works and to handle the collection and distribution of royalties for reproductions of copyrighted works. Not surprisingly, opinion was sharply divided over the need to amend Section 110(2). There was no further Congressional action on the issue for nearly two years.

In March 2001 Senators Orrin Hatch (R-Utah) and Patrick Leahy (D-VT) sponsored a bill to implement the Register's recommendations, S. 487, the Technology, Education and Copyright Harmonization Act (TEACH). A hearing on S. 487 was held on March 13 before the Senate Judiciary Committee. Testimony was presented on behalf of copyright proprietors and the higher education community. The Register's testimony supported the bill, which would implement the recommendations made by her office. Again, support for the bill was divided. Higher education was generally supportive of the amendment but had reservations about some of the language and the call to develop guidelines. Copyright owners strenuously objected to the bill.

At the conclusion of the hearings, the Senate Subcommittee asked the...

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