Copyright Surviving Copyright in Distance Eduation: A Selective List of Copyright Dos and Don'ts

Citation

Dolak, F. (2001), "Copyright Surviving Copyright in Distance Eduation: A Selective List of Copyright Dos and Don'ts", Library Hi Tech News, Vol. 18 No. 6. https://doi.org/10.1108/lhtn.2001.23918faf.003

Copyright Surviving Copyright in Distance Eduation: A Selective List of Copyright Dos and Don'ts

Sometimes understanding copyright can often be thought of as being similar to the popular Abbott and Costello routine, "Who's on First?" More often than not, the result of determining whether something is infringing or not gets you to that famous third base cry of desperation: "I don't know!" This can especially be the case with the use of copyrighted materials for distance education.

Surviving copyright can also be thought of as being similar to the very popular TV program "Survivor", which requires the eventual winner to master a few rules and a number of challenges to outwit, outplay and outlast the competition. Our rules and challenges involve the use of copyrighted materials for distance education versus the Copyright Law of the USA. A distance education instructor starts off with many classroom enhancements that she/he can use in the traditional face-to-face classroom, but when confronted with the Copyright Law, those materials are pared down to just a few survivors of copyright. You get a few, meager bags of rice for a lengthy sojourn in the Australian outback.

Most of the problems in understanding copyright in distance education stem from the circuitous and ambiguous wording in the law as well as some of the implied references that need to be understood. As will be seen, the law is highly restrictive in its uses of copyrighted materials for distance educators.

Distance educators are often shocked and dismayed to come to the realization that the Copyright Law actually delineates what types of materials can and cannot be used in distance education transmissions. Distance educators are presented with an arbitrary, negative, statutory dichotomy of classroom enhancements in distance education. The law literally makes a difference between a performance of copyrighted materials on the one hand and the display of copyrighted materials on the other.

The Copyright Law's limitations impose the following scenario:

• •

  A distance learner takes the same class as a student on campus, pays the same course fees, gets the same amount of course credit, has the same assignments, has the same instructor, and receives the same diploma. But because of the Copyright Law a distance learner does not have the same access to classroom audio/visual enhancements, as does the on-campus student.

Discovering why this scenario is the case requires several analytical stops.

The first place to start in surviving copyright in distance education is to look at the relevant portion of the law that pertains to distance education. This is Section 110 (2) of the Copyright Law and it reads:

• •

  Notwithstanding the provisions of section 106, the following are not infringements of copyright:(2) performance of a nondramatic literary or musical work or display of a work, by or in the course of a transmission ...

The confusion, dismay, ambiguities, and educational material restrictions are a direct result of this wording of Section 110 (2) of the Copyright Law of the USA. All of distance education's difficulties and restrictions in using copyrighted materials for distance education arise from the use of a few keywords and a phrase used here in this section of the law. The primary and critical keyword found here is "transmission." The problematic phrase is "nondramatic literary or musical work." "Performance," "display" and "nondramatic" are other keywords.

Surviving copyright in distance education requires understanding the challenges and rules found and implied here. Survival means understanding the rules contained here to legitimately use as much copyrighted materials in distance education that the law allows. So just what exactly are those rules and challenges?

The first copyright "survivor challenge" of the game is very important and requires an understanding of the law's definition of transmit:

• •

  To "transmit" a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.

This definition means that the current law does not make any distinction between, for example, a televised transmission and an Internet transmission. They are the same.

The second copyright survival challenge gleaned from Section 110 (2) involves the phrase, "nondramatic literary or musical work." While on the surface, this wording may seem harmless and nontoxic, it is in fact, as will be seen, extremely limiting.

Our third copyright survival challenge requires an understanding of the term, "nondramatic." Looking through the definitions of terms provided by the Copyright Law, one discovers that there is no definition of nondramatic. Not to worry, there isn't a definition of the term, "dramatic," either. Ambiguity arises here from a lack of definitions. But Congress has provided a challenge to our understanding what this section means. In order to outwit, outlast and outplay, the law requires that inferences be made from the term "literary," used in this section. As defined by the Copyright Law:

• •

  "Literary works" are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.

Section 110 (2) only allows transmissions of copyrighted "nondramatic literary (and musical) works." Meaning that any literary works that are dramatic cannot be transmitted without permission of the rights holder(s). This now begins to considerably limit the use of copyrighted materials for distance education. Extrapolating from Section (110) 2 means the following types of educational materials cannot be transmitted for a distance education course (unless one obtains permission from the copyright owner(s)):

• •

  Not allowed: any and all audiovisual works.

• •

  Not allowed: dramatic books (probably all fiction works).

• •

  Not allowed: dramatic periodicals (plays, etc., contained in them).

• •

  Not allowed: dramatic manuscripts (screenplays, etc.).

• •

  Not allowed: dramatic phonorecords (operas, dramatic readings, etc.).

• •

  Not allowed: dramatic films.

• •

  Not allowed: dramatic tapes.

• •

  Not allowed: dramatic disks (audio CDs, DVDs, etc.).

• •

  Not allowed: dramatic cards (but who uses IBM punch cards?).

On-campus students will have the opportunities to experience these types of works in class but because of the Copyright Law, distance education students do not. Unless, of course, the instructor or their institution is willing to pay the transmission fees for the use of their copyrighted material(s) and/or to contact the rights owner to obtain permission for transmission. To be fair, when contacted some rights owners do not charge licensing fees or charge fees that are quite nominal. On the other hand, some transmission fees can be confiscatory and unrealistic. But costs are not the point. Contact is. The law requires those who use copyrighted dramatic materials to go through the sometimes time-consuming process of finding, contacting and then negotiating for the use of the owner's material for a distance education class.

Surviving copyright in distance education also involves one last set of rules and challenges: whether the educational transmission contains either a performance or a display. Transmission restrictions continue.

Performances of dramatic works are restricted by the Copyright Law, and any performance is an infringement of copyright unless permission from the copyright holder has been obtained for the performance. Just what does the Copyright Law mean by performance? The definition of performance is:

• •

  ... to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.

To iterate, performances require permission from the rights holder(s). It should be noted too, that if still images are shown sequentially ­ regardless of format ­ that is considered to be a performance. Because of this definition, showing entire filmstrips and slide sets, for example, would be performances and cannot be used in distance education unless the copyright owner gives their permission.

What about a "display?" As defined by the Copyright Law, a display means:

• •

  ... to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.

What's a copyright survivor to do? For starters, don't let your distance education torch be snuffed out! Outwit, outlast, outplay! That's where the accompanying chart comes in: the ambiguous, circuitous rules and challenges have been distilled into a set of Dos and Don'ts.

The chart accompanying this article conveniently illustrates what can be used and cannot be used (unless you have permission) in the course of an educational transmission. These Dos and Don'ts should be able to assist in differentiating between displays and performances as defined for transmissions in the Copyright Law and help in surviving copyright in distance education.

From the chart, it is easily and graphically seen that the current law presents a number of barriers for distance educators. Is there any hope on the horizon? Yes, there is. Two hopeful events have transpired. The first hopeful event occurred in 1999 when the Register of Copyrights was mandated by the Digital Millennium Copyright Act of 1998, to conduct a review and study on revising the distance education provisions of the Copyright Law.

After holding three meetings throughout the USA for users and owners of copyrighted works, the Register released her report in May 1999 entitled, "Report on Copyright and Digital Distance Education" [SuDoc # LC 3.2:D 56/2/V.1 - 3] which recommends to Congress obviating the arbitrary distinctions between performance and display, sequential and non-sequential and the distinctions between dramatic and nondramatic. Her report recommends updating the current Copyright Law, balancing new exemptions for distance education along with the concerns of the rights holders. An article in an upcoming issue of Library Hi-Tech News will illustrate the changes that have been recommended by Ms Marybeth Peters, Register of Copyrights.

The second hopeful event has occurred only very recently and is a direct result of the Registers' recommendations. Two insightful US Senators have come around to see the distance education transmission barriers for what they are: impediments to teaching.

On March 7, 2001, Senator Orrin Hatch (R-UT) and Senator Patrick Leahy (D-VT) introduced a bill to take into consideration the digital age and to therefore update the distance education provisions of the Copyright Law. Their bill is S. 487 and is titled the "Technology Education and Copyright Harmonization Act" (aka the "TEACH Act"). Their bill takes into consideration many of the recommendations made by the Register in her report. If this legislation survives its own set of challenges in the House and is made into law, distance education will have won a very critical immunity challenge.

But in the meantime, what can you do before the bill ever becomes law? Stay off of third base and don't cry out in bewilderment, "I don't know!" Don't let your torch be snuffed out by the highly restrictive copyright tribal council. Survive copyright in distance education: use the Dos and Don'ts (see Table I).

Table I. A selective list of copyright Dos and Don'ts for distance education

For a color version of the Dos and Don'ts, please go to: http://www.bsu.edu/classes/dolak/dos&donts

For additional copyright information and additional copyright links, please go to: http://www.bsu.edu/library/thelibraries/units/copyright/

Fritz Dolak (fdolak@bsu.edu) is Copyright and Electronic Resources Librarian at Ball State University Libraries in Muncie, Indiana, USA.