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February 10, 1999

 Education
By PAMELA MENDELS Bio

Copyright Law Raises Questions for Distance Education

 For more than 20 years, federal copyright law has granted teachers of distance learning courses an invaluable exemption, allowing, say, an English professor to read a poem to far-flung students without fear of running afoul of laws protecting the holder of the work's copyright.

Now, at a time when computer networks are replacing closed circuit television as the state-of-the-art medium for distance education, the law needs to be expanded, asserts a group of educators and librarians. They are urging changes that they say will encourage the growth of learning via digital technologies.

However, representatives of copyright holders, from the American Association of Publishers to the Software & Information Industry Association, say there has been little evidence that the law is stifling distance learning online. Furthermore, they say they fear that any significant changes in the statute could spur massive digital piracy.
Figuring out the proper balance between the rights of copyright holders and the rights of digital distance learners.

Sitting in the middle is the U.S. Copyright Office of the Library of Congress, which on Wednesday is scheduled to hold the second of three public hearings on the "Promotion of Distance Education Through Digital Technologies" in Los Angeles.

The hearings are part of the office's effort to prepare a report and make recommendations to Congress by April 28. Although it's too early to say what the study will conclude, it's clear that copyright officials are sifting through mounds of information from both sides. About 50 witnesses will have testified before the final hearing in Chicago on Friday. The first hearing was a two-day event in Washington last month, which included demonstrations of distance learning efforts.

Copyright officials have good reason to be conscientious. Figuring out the proper balance between the rights of copyright holders and the rights of digital distance learners proved such a contentious issue last year that Congress put the matter on hold when it passed other major revisions to copyright law in the Digital Millennium Copyright Act. The new law put the current study in motion, by requiring the Copyright Office to prepare the report and recommendations.

On one side of the debate are librarians and educators who say that without a change in the law, the ability of distance education to flourish in the digital age will be severely curtailed. "We want laws in place...that make it clear what we can and cannot do, so we move in an environment that is supportive of distance learning rather than undermining of it," said Leslie A. Harris, a lawyer and lobbyist for groups including the Consortium for School Networking, which advocates the use of technology in K-12 education.

The statute in question, known as Section 110, was enacted in 1976. It mandated, in general, that educators performing or displaying certain copyrighted works without permission while teaching a distance education class be considered exempt from copyright infringement. The problem, supporters of changing the law say, is that the statute is couched in the assumptions of earlier technology. The law, for example, specifies that the exempt uses must be made principally for "reception in classrooms." This is because, long before modems were common, legislators envisioned distance education as a one-way closed-circuit television broadcast of an instructor's lessons to an off-site classroom.

Supporters of a revised statute wonder whether this law can protect a teacher instructing students who could be sitting in their bedrooms calling up classes on the World Wide Web. "If we want educators to reasonably use copyright materials to facilitate distance education 21st century style, we have to modernize the exemption. It's as simple as that," says Adam M. Eisgrau, legislative counsel to the American Library Association.

Supporters of change also say they fear a status-quo law will inhibit teachers from using increasingly popular multimedia presentations in distance instruction. In addition, they argue that gaining permission to use copyright materials has proved cumbersome and costly. Kim B. Kelly, assistant vice president for information and library services at the University of Maryland University College, the distance learning branch of the University of Maryland, recalls that one newspaper wanted to charge the program $1,500 for the right to post one article for one semester in a Web course to which students had access only with a password.


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Representatives of copyright holders respond that they have seen little evidence that the law is dampening the development of distance education in cyberspace. "In homely terms, nobody has shown it's broke, so why try to fix it?" said Bernard R. Sorkin, a Time Warner lawyer who testified at the Washington hearing.

Sorkin said a major concern for copyright holders is that it's easy for computer users to make flawless copies, and students cavalier or ignorant about copyright law might, therefore, be inclined to make their course materials -- anything from a movie clip to a software package -- available to others.

"The big fear is the professor's stuff will go out to the students. They will be located all over. They will make copies and distribute them all over again," he said.

Copyright holders are also skeptical about how "distance learning" can be defined in the age of computer networks, when a student can as easily be sitting in a cybercafe or a den as in a classroom. "If you carve out this huge exemption and allow anyone who calls himself a 'distance educator' to digitize and disseminate material to a large number of people, control of the product can quickly get out of hand," said Fritz E. Attaway, general counsel to the Motion Picture Association of America in Washington, D.C.

For now, Copyright Office officials are taking in the arguments. "It's a very important issue," said Shira Perlmutter, associate register for policy and international affairs at the Copyright Office. "We hope we can come up with something that's helpful. Congress will have to take the ball from there."

The EDUCATION column is published weekly, on Wednesdays. Click here for a list of links to other columns in the series.

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Pamela Mendels at mendels@nytimes.com welcomes your comments and suggestions.

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