Copyright and Distance Learning: Lessons from the TEACH Act
By Neil Turkewitz
With conditions created by COVID-19 becoming our new normal, and with much discussion of distance learning — including the unique copyright issues raised by distance learning as opposed to face-to-face instruction, it struck me as fairly bizarre that I see so little discussion of the Technology, Education, and Copyright Harmonization Act, known generally as TEACH Act. After all, the TEACH Act was adopted by Congress in 2002 specifically to address copyright issues that may arise in connection with distance learning, and was the result of many user groups working with libraries, copyright owners and policy makers to devise an appropriate and balanced legal structure to address the needs of an emerging digital society. The purpose here is not to suggest that the TEACH Act has provided a definitive and permanent solution to the issues arising in connection with distance learning. But at the same time, we should not ignore the lessons which may be learned from a careful deliberative process that engaged Congress, the Copyright Office and all affected parties in the development of a hard fought compromise.
As noted by the American Library Association at the time of its adoption, “Long anticipated by educators and librarians, TEACH redefines the terms and conditions on which accredited, nonprofit educational institutions throughout the U.S. may use copyright protected materials in distance education-including on websites and by other digital means — without permission from the copyright owner and without payment of royalties.”
In this piece, I merely want to remind people about the TEACH Act — or more specifically about the history of the TEACH Act. I do not address whether Congress reached the right balance when it legislated in 2002. I offer this only to remind people about an important feature of the existing legal landscape given my general sense that we are poorly served when we don’t allow the past to inform our present decision-making.
In this piece I focus on history that I think is highly relevant to current questions related to distance learning. I do not review the specific provisions of the TEACH Act. Here, however, is an excellent primer by Ohio State University that discusses its principal provisions, as well as a brief discussion of the continued relevance and application of fair use.
So on to the history of the TEACH Act. I do this in some detail, with links to the relevant source materials. It’s an interesting story that almost wholly mirrors present concerns about distance learning, and the successful efforts of Congress and the Copyright Office to reach a resolution that all parties found reason to support, even if it didn’t represent their ideal solution. It’s a story of compromise, and of parties willing to compromise.
First of all, let me note the obvious — that consideration of flexibility for educational uses of copyright works has a long history in US copyright law and international treaties. The 1976 Copyright Law, in addition to general principles of fair use, provided certain exceptions for use of protected materials in the course of a transmission (like television, radio broadcasting). At the international level, the Berne Convention, as well as other relevant treaties, contain provisions related to the scope of permissible exceptions and limitations, including of course with respect to educational uses.
With this binding international framework as a guide, in the years following adoption of the 1976 Act, Congress continued to examine the evolving needs of educators and authors in light of emerging technologies that created both opportunities and risks for all parties, and included in Section 403 of the 1998 DMCA a requirement that the Register submit recommendations to Congress on “how to promote distance education through digital technologies, while maintaining an appropriate balance between the rights of copyright owners and the needs of users.” The Copyright Office summarized their instructions as follows:
“In the course of consideration of the DMCA, legislators expressed an interest in amending the Copyright Act to promote distance education, possibly through an expansion of the existing exception for instructional broadcasting in section 110(2). Section 403 of the DMCA directs the Copyright Office to consult with affected parties and make recommendations to Congress on how to promote distance education through digital technologies. The Office must report to Congress within six months of enactment.
The Copyright Office is directed to consider the following issues:
-The need for a new exemption;
-Categories of works to be included in any exemption;
-Appropriate quantitative limitations on the portions of works that may be used under any exemption;
-Which parties should be eligible for any exemption;
-Which parties should be eligible recipients of distance education material under any exemption;
-The extent to which use of technological protection measures should be mandated as a condition of eligibility for any exemption;
-The extent to which the availability of licenses should be considered in assessing eligibility for any exemption; and
-Other issues as appropriate.
Marybeth Peters, then Register of the Copyright Office, delivered the Office’s “Report On Copyright and Digital Distance Education” to Congress in 1999.
Her statement before the Senate Judiciary Committee in delivering the report was remarkably prescient in identifying the competing equities in considering the appropriate changes to be made, if any, to existing law in order to better accommodate distance learning. She ultimately recommended a variety of reforms that eventually would form the basis of the TEACH Act, advising the Senate that:
“As a fundamental premise, the Copyright Office believes that emerging markets should be permitted to develop with minimal government regulation. When changes in technology lead to the development of new markets for copyrighted works, copyright owners and users should have the opportunity to establish mutually satisfactory relationships. A certain degree of growing pains may have to be tolerated in order to give market mechanisms the chance to evolve in an acceptable direction. At some point, however, existing but dysfunctional markets may require adjustments in the law. Timing is therefore key.
The desire to let markets evolve does not mean that the law must remain frozen. Where a statutory provision intended to implement a particular policy is written in such a way that it becomes obsolete due to changes in technology, the provision may require updating if that policy is to continue. Doing so may be seen not as preempting a new market, but as accommodating existing markets that are being tapped by new methods. In the view of the Copyright Office, section 110(2) represents an example of this phenomenon.
The exemptions in sections 110(1) and (2) embody a policy determination that performances or displays of copyrighted works in the course of systematic instruction should be permitted without the need to obtain a license or rely on fair use. The technological characteristics of digital transmissions have rendered the language of section 110(2) inapplicable to the most advanced delivery method for systematic instruction. Without an amendment to accommodate these new technologies, the policy behind the law will be increasingly diminished.”
The Register’s Report ultimately led to S. 487 proposing a series of reforms. The Register appeared before the Senate Judiciary Committee in March of 2001, embracing much of the draft, but noting areas where she agreed with concerns raised by the educational community on the one hand, and with risks identified by the creator community on the other. She again reiterated the importance of ensuring effective balance.
“Part of the challenge for this Office in formulating recommendations addressing digital distance education was to remove technologically obsolete legal provisions as an impediment to carrying forward the distance education activities sanctioned by Congress in 1976 into the twenty-first century, without killing a nascent and potentially important market for right holders. We concluded that this could best be accomplished by using the policy line drawn by Congress in 1976 as the point of reference for a technological updating of section 110(2) that would take account of the nature and capabilities of digital networks.
At the same time, the Copyright Office was mindful of the risks that are inherent in the exploitation of copyrighted works in digital form. We concluded that additional safeguards were necessary to minimize the risk to right holders that legitimate use of works under an expanded and updated distance education exemption could result in copyright piracy.”
A few short months after the Register’s appearance before the Senate Judiciary Committee in which she spoke at length about concerns raised by both the educational and creator communities over aspects of the original bill, something fairly astonishing happened. In her June 2001 appearance before the House Judiciary Committee, the Register testified as follows:
“The Senate Judiciary Committee held a hearing on S.487 on March 13, 2001. In my testimony in that hearing I noted that the language of the bill raised a few issues. Additionally, educational institutions and copyright owners objected to some of the provisions and had questions about others. None of the identified issues or questions was easy to resolve, and at that point, the parties seemed far apart.
In late April, after the Senate hearing, the Office was asked to facilitate discussions among the interested parties with the goal of reaching consensus and was pleased to do so. Over several weeks, representatives of copyright owners, nonprofit educational institutions and nonprofit libraries met in lengthy sessions and negotiated many thorny issues. The sessions were at times difficult, but everyone was committed to the goal of reaching a fair, sound result. I commend those who participated in those sessions for their resolve and exceptional efforts. The result is a compromise that is balanced and that will benefit education.”
Compromise & Balance
The story of the TEACH Act is the story of compromise. It is an important story — both specifically as regards present discussions of distance learning, and more generally from the standpoint of advancing societal issues in a thoughtful manner. Adapting copyright to distance learning in a way that balances sometimes competing interests is not virgin territory. There have been some parties that have seen in COVID-19 an excuse to adopt unbalanced practices that would, in my view, undermine the public interest in continuing to fuel the creative genius behind the creation of original cultural works. Were that to happen, we would all be the poorer for it.
As I observed at the outset — I am not suggesting that the TEACH Act has provided a definitive and permanent solution to the issues arising in connection with distance learning. But at the same time, we can ill afford to ignore the lessons to be learned from a careful deliberative process that engaged Congress, the Copyright Office and all affected parties in the development of a hard fought compromise. I realize that speaking of compromise is sort of old-fashioned in a society marked by bitter divisiveness and winner-take-all mentalities, but there may be something to it. Something human and lasting.
Note: For those interested in a further exploration of the TEACH Act, here are links to the Senate Judiciary Committee and House Judiciary Committee Reports, respectively.
