The Digital Learning Challenge:
Obstacles to Educational Uses of Copyrighted Material in the Digital Age
A Foundational White Paper
This foundational white paper reports on a year-long study by the Berkman Center for Internet and Society, funded by a grant from the Andrew W. Mellon Foundation, examining the relationship between copyright law and education. In particular, we wanted to explore whether innovative educational uses of digital technology were hampered by the restrictions of copyright. We found that provisions of copyright law concerning the educational use of copyrighted material, as well as the business and institutional structures shaped by that law, are among the most important obstacles to realizing the potential of digital technology in education.
The paper builds on four detailed case studies of initiatives that have encountered such obstacles. Each of these initiatives is moving forward, but only by fighting against a copyright-related system that instead should be helping educators accomplish their goals. The four case studies are:
Drawing on these case studies, other research, and comments made by a cross-section of scholars, lawyers, librarians, and educators who participated in two day-long workshops organized as part of the project, the following emerged as the most significant copyright-related obstacles to educational uses of content:
While the primary task of the foundational white paper was to identify these obstacles, the paper concludes with some discussion of paths toward reform that might improve the situation. It suggests that certain types of legal reform, technological improvements in the rights clearance process, educator agreement on best practices, and increased use of open access distribution would help overcome the obstacles we identified.
Digital technology revolutionizes many of the ways we receive and use information every day. The availability of online resources has changed everything from hunting for a new house to reading the newspaper to purchasing plane tickets, and as a result has disrupted established structures (such as the real estate, news, and airline businesses). Telecommuting has become widespread. The market for popular music has transformed dramatically. Internet telephony presents a real challenge to established telecommunications companies. Millions of blogs, social networking sites, and interactive online games have created new modes for interaction and expression. In short, the advent of digital technology touches almost every aspect of modern life.
Perhaps no area holds more potential for such transformation than education. Many diverse and exciting initiatives demonstrate how rich sources of digital information could enhance the transfer of knowledge. Yet at the same time, the change in education arguably has been less radical, especially in comparison to mundane endeavors such as selling a used bicycle or booking hotel rooms. There are many complex reasons for this slow pace of change, including lack of resources and resistance to new practices. As this white paper explains, however, among the most important obstacles to realizing the potential of digital technology in education are provisions of copyright law concerning the educational use of content, as well as the business and institutional structures shaped by that law.
In 2005, the Berkman Center for Internet and Society at Harvard Law School embarked on a study, funded by a grant from the Andrew W. Mellon Foundation, to examine the relationship between copyright law and education. In particular, we wanted to explore whether innovative educational uses of digital technology were hampered by the restrictions of copyright. We conducted research for the 2005-2006 academic year, including organizing two workshops with a cross-section of leading experts – scholars, lawyers, librarians, and educators (and some people who are all four of those things at once). This foundational white paper reports the results of those efforts. It seeks to identify the problems impeding educational uses of digital content and it begins the analysis of appropriate solutions.
This introductory section lays groundwork for the analysis in two respects. Subsection 1.1 provides examples of the extraordinary promise of digital technology for education. Subsection 1.2 provides very basic background about copyright law (later sections, as well as free-standing modules accompanying the white paper, elaborate considerably upon this rudimentary explanation).
The remainder of this white paper undertakes the analysis. [Section 2] summarizes four detailed case studies of initiatives that have overcome some of the copyright-related obstacles they faced, but have also been forced to limit their plans as part of their response. Building on these case studies, the white paper then turns to an analysis of the obstacles to educational use of content:
Finally, the paper concludes with some initial exploration of possible paths toward overcoming these obstacles [section 7].
Back to Table of ContentsDigital technology makes informative content easier to find, to access, to manipulate and remix, and to disseminate. All of these steps are central to teaching, scholarship, and study. Together, they constitute a dynamic process of “digital learning.”
In general, this white paper adheres to a capacious definition of education. The sort of teaching and learning that occurs within traditional educational institutions such as K-12 schools and colleges and universities lies at the center of our understanding of education. Similarly, the concept clearly embraces scholarship undertaken by faculty, students, and other researchers affiliated with colleges, universities, or other established research institutions (such as medical centers and think tanks). Yet digital learning extends beyond these more formal institutions to involve everyone with internet access. In some instances, traditional institutions are making their educational content available to the general public online. In other cases, individuals who may have no connection to formal academia can nonetheless engage in teaching and learning with one another through the use of new technology. The examples below include all of these types of digital learning.
This broad scope for our definition of education is in keeping with the open-ended, collaborative, and disintermediated nature of the digital environment. Indeed, one of the most exciting features of digital technology is its capacity to permeate society unrestricted by the walls of a school or the formal roles of teachers and students. Of course, some issues we discuss herein are unique to the particular needs of more formal academic institutions. But it is important to keep in mind the wide spectrum of activity included in the concept of “digital learning.”
Indeed, perhaps no initiative better epitomizes the concept of digital learning than one undertaken by a private company rather than a school: the efforts of the search engine company Google to digitize and index books housed in five major research libraries. (Harvard University is one of the five libraries participating in the program; the others are Stanford University, Oxford University, the University of Michigan, and the New York Public Library). As the company explains it, the “ultimate goal” of the Google Library Project is “to work with publishers and libraries to create a comprehensive, searchable, virtual card catalog of all books in all languages that helps users discover new books and publishers discover new readers.” Google users will be able to enter search terms that would yield “snippets” of a few sentences from books still protected by copyright and the entire book if it is in the public domain. Google believes that such limited quotation is legal as a fair use [see section 3.2] and emphasizes that rightsholders can elect to have copyrighted books removed from the database.
As has been widely reported, federal lawsuits filed by a group of publishers and by the Authors Guild allege that the Google Library Project violates U.S. copyright law. In short, these rightsholders argue that the act of digitization is itself an infringement of their copyrights, regardless of the purpose to which Google puts the copies. They are also animated by at least two more practical concerns. First, the authors and publishers raise concerns about the security of Google’s digitized database of their books – they worry that hackers may figure out how illicitly to copy the full text of books stored there. Second, the authors and publishers argue that they are entitled to licensing revenue from these uses of books. In sum, they argue, Google seeks to make an advertising profit from an illegitimate use of copyrighted material belonging to others.
The Google Library Project resembles both the projects noted here and the more detailed case studies that follow in section 2 in key respects. On one hand, the motivation behind the project is an imaginative, educational use of digital technology. On the other hand, copyright law and related business and institutional structures are proving to be obstacles rather than facilitators of such digital learning. Both sides advance reasonable arguments, in terms of both the current law and the wisest future policy. Their conflict raises the central question: how do we, and should we, encourage both widespread uses of content and preservation of incentives for creators and distributors? Attorneys and legal scholars have reached widely disparate conclusions concerning the merits of these suits, making the outcome difficult to predict.
Now, on to the other examples. Notwithstanding the obstacles documented elsewhere in this white paper, committed educators of every kind have taken advantage of digital technology to launch all sorts of exciting new initiatives. The mere sampling we offer here is intended to demonstrate the extraordinary promise of this technology and thus create context for the analysis that follows.
Teaching and learning in traditional schools, from kindergarten to graduate school, benefits from digital technology that enables new pedagogical methods and allows easy access to vast quantities of educational content. Examples of changes that capitalize on this potential include:
Traditional scholarship now enjoys unprecedented access to source materials as well as digital distribution methods. In place of the book and the journal article, printed on paper with months of lead time and mailed to libraries, scholarly work is increasingly presented online. This permits:
Institutions enlighten the general public by using digital technology to make the educational content they create or control available to a much broader audience:
Finally, more “open” forms of digital learning now allow efficient creation and distribution of varied educational content with little direct involvement of traditional institutions. As noted above, new technology allows everyone to become teachers and students – creating digital learning tools, disseminating them broadly through the internet, and learning from digital content promulgated by others. A few examples include:
All of these diverse examples illustrate the potential that digital learning has to transform education. The case studies discussed in section 2 provide more specific detail, both about this promise and about the problems that the copyright system presents. In order to lay the groundwork for that discussion, some basic explanation of copyright law is necessary.
Back to Table of Contents[For overview of the law that is more in-depth than this brief description permits but still accessible to non-lawyers, see the U.S. Copyright Office’s Circular #1, Copyright Basics, which is available online in a recently updated form].
Back to Table of ContentsU.S. federal copyright law grants the creator of an original work of authorship (including literary, dramatic, musical, visual, architectural, and other kinds of works) a set of exclusive legal rights involving different means of exploiting the work. These include, among others, the right to reproduce, distribute, display, or perform the work. A copyright also confers the exclusive right to prepare “derivative works” from the original, such as a sequel to a novel based on the same characters, a translation into another language, or an abridged or edited version of the work. All the rights come into existence automatically once the work has been “fixed” in a permanent tangible form, such as being written down on paper or recorded in digital form. Generally speaking, under the most recent extension of the copyright term, passed by Congress in 1998, the rights most often persist for seventy years after the author’s death, or for a total of ninety-five years if the “author” is a corporation. (This flowchart by Professor Timothy K. Armstrong of the University of Cincinnati provides some greater detail about the notoriously complex calculation of copyright duration.)
The most commonly cited rationale for granting such strong rights is the desire to furnish incentives to create original work. By granting legal protection against copying and other unauthorized exploitation of the work, copyright seeks to ensure that creators and distributors of works reap the monetary rewards flowing from their efforts. The availability of these rewards, in turn, should stimulate further creative work. Without copyright, others might easily copy a work of authorship and never pay its originators for it. Digital technology and the accompanying ability to make perfect copies of content have further increased this feature of intellectual property.
In practice, the creator of a work often licenses or transfers some or all of these rights to other entities (such as publishers, universities, record companies, or periodicals) who then may enforce the rights themselves. Similarly, when creators die, their heirs typically inherit whatever rights they retained. As such, this white paper refers to “rightsholders” rather than simply “authors” when it discusses those who have the capacity to sue others for infringement.
The owner of a copyright can sue others who infringe on the exclusive rights covered during its term. The most basic sort of infringement is copying or distribution of a work without permission of the rightsholder. In addition, those who assist or enable others’ infringing activities may themselves be held liable under copyright law. So, for example, as the Supreme Court held in its 2005 Grokster decision, a peer-to-peer file-sharing service that affirmatively encourages illegal copying and swapping might lose in court under such a theory of “secondary” liability.
Back to Table of ContentsOf course, rightsholders do not have unlimited power to control all potential use of content. The very purpose of the copyright system is to ensure that public discourse is enriched by creative work, and this purpose would be thwarted by excessive control. Since its very beginnings, therefore, copyright law has sought to strike the appropriate balance between preserving rewards for creators of works (and therefore incentives for creation) and fostering subsequent uses of that content.
Some of the most fundamental elements of copyright law support this balance. So, for instance, copyright does not confer any control over facts or ideas, only the particular expression of those facts or ideas in a work. As a result, a historian can sue someone who copies the language she used to describe events, but not the underlying raw information. Copyright also confers control only over the intangible creative content of a work, not the physical object that houses content such as a book or CD. This limitation is reinforced by the “first sale” doctrine, which allows a person who buys an authorized copy of a book to dispose of it how he pleases, including selling or loaning it to someone else.
Congress and the courts have also fashioned a number of exceptions allowing uses of content notwithstanding the exclusive rights granted to creators. Not surprisingly, given the centrality of education to the purpose of the copyright regime, many of these exceptions apply to educational uses of content. The fair use doctrine is the most famous of these. Broadly speaking, fair use allows certain limited uses of content for purposes that further public discourse, such as comment, criticism, and parody; the doctrine is explained in more detail below in section 3.2. A set of educational use exceptions, explored further in section 3.1, seeks to augment fair use, particularly within the boundaries of the traditional school environment. Whether or not these exceptions are effective, especially in the context of digital learning, is another matter.
Back to Table of ContentsA further addition to rightsholders’ arsenal is the ability to use technological mechanisms to prevent unauthorized copying of works, discussed further in a case study in section 2.2 and in section 4. Such mechanisms are most widely known as Digital Rights Management (“DRM”) systems (the name used in this white paper), though they are also sometimes called Technological Protection Measures (“TPMs”) or copy prevention technology. By whatever name, DRM systems are encoded into digital content by a variety of means, such as encryption or watermarking, so that users are incapable of accessing or using the content in a manner that the rightsholder wishes to prevent. Sometimes, as in the case with most commercially distributed DVDs, the DRM system simply aims to prevent all copying indiscriminately.
Copyright law reinforces the power of DRM systems through the Digital Millennium Copyright Act (“DMCA”), found in chapter 12 of the statute. In general, the DMCA seeks to forbid the circumvention of a DRM system – defined as “a technological measure that effectively controls access to a work protected [by copyright law].” It also outlaws development or trafficking of any DRM circumvention device or technology.
There are very limited exceptions to liability under the DMCA, but notably they do not include any defense based on an assertion of applicable exceptions under copyright law, such as fair use. Defendants who have a fair use right to reproduce content do not thereby have a defense if they must circumvent a DRM system to gain access to that content. There is also an exemption from civil damages for certain defined educational institutions under section 1203(c)(5), but it is available only if the defendant accused of circumvention “sustains the burden of proving, and the court finds, that the library, archives, educational institution, or public broadcasting entity was not aware and had no reason to believe that its acts constituted a violation.” It would be extremely difficult for any responsible educational institution to demonstrate such ignorance of a well-known legal restriction, and individuals are not eligible for the same lenience.
Consequently, educators are potentially vulnerable to civil or even criminal penalties if they interfere with whatever technological restrictions rightsholders choose to impose on the use of content.
This section summarizes the four case studies completed as part of research for this white paper. More detailed versions of each study are also available as separate documents.
Each of the digital learning efforts described here is moving forward despite obstacles presented by legal rules, institutional structures, and market forces. The educators involved in these case studies have devoted hard work and accepted compromise. They are fighting against a copyright-related system that instead should be helping them accomplish their goals.
Back to Table of Contents[A more detailed version of this case study is here]
The Center for History and New Media (CHNM) at George Mason University is a research center dedicated to using “digital media and computer technology to democratize history” and to enhance the presentation and preservation of the past. As part of this mission, CHNM is planning an online social networking service that will allow elementary and secondary school teachers to communicate across distances and provide mutual professional support.
CHNM recognized early on that one of the features in such a network that users will find most desirable is the opportunity for teachers who have developed successful classroom resources to share them with their colleagues. The exchange of resources incorporating photographs, animation, maps, sound clips, and the like lets teachers draw on one another’s creativity to stretch their limited time and supply budgets and to offer their students a rich, multifaceted learning experience. Through such a system, a teacher who had created, say, an excellent PowerPoint presentation about early African cultures, or media coverage of the Vietnam War, could allow other teachers around the country to use it. In addition, through rating and social tagging technologies, the system would allow users to find suitable lessons and to rely on colleague’s opinions of their quality.
CHNM has been forced to curtail its plans for a resource exchange component of the network because of the risk of secondary liability for copyright infringement. CHNM fears, not unreasonably, that teachers might use the network to post resources that include content from other sources in a manner which infringes copyrights. The hypothetical PowerPoints named above, for example, might incorporate a recording of early African music or the famous photo of Vietnamese children fleeing napalm. Because both are likely copyrighted, CHNM must take care not to be held secondarily liable for their distribution by users of the network.
Ironically, copyright law does not prohibit teachers who create such a resource from showing it in their own classes, even if it contains copyrighted content. In general, the educational use exceptions in copyright law, particularly those in section 110 of the statute [further explained in section 3.1.1 of this white paper] shield that teacher from liability. Furthermore, the fair use doctrine [further explained in section 3.2 of this white paper] should fill whatever gaps may exist in the coverage of these exceptions.
The problem arises only when the teachers who create such a resource distribute it to other teachers for use in their classrooms. The act of distribution likely falls outside the scope of the educational use and fair use exceptions to liability. Thus, teachers who would be permitted to produce and use their own “do-it-yourself” digital teaching aids are not allowed to loan them to colleagues to use in their classrooms. (The British Library, for example, which owns the copyright to the African music recording in the above hyperlink, makes this limitation explicit in its copyright statement.)
CHNM still plans to include a lesson-swapping function in the History Teachers Network, but will forbid users from sharing any copyrighted material and will present a strongly-worded warning at the upload point not to do so. CHNM will also take other precautions, such as providing access only to users affiliated with school districts, establishing notice-and-takedown procedures in compliance with the Digital Millennium Copyright Act, and posting disclaimers.
From the teachers’ perspective, this is at most a second-best option, because it will exclude potentially high-quality teaching materials that incorporate protected works. Teachers who originally developed lessons for use in their own classrooms had no reason to attend to the copyright status of content, and so they are likely to be unsure whether they can upload these resources. Organizers at CHNM are also concerned that dire-sounding copyright warnings will discourage teachers from submitting resources that would in fact be legal to distribute. For example, a teacher might have created a presentation incorporating material that, while not in the public domain, carries the permission of the rightsholder to copy and distribute for educational purposes (such as a Creative Commons noncommercial use license). Or the teacher might have used scientific data that, because it is factual and not creative, is not entitled to copyright protection. Teachers are not copyright experts and will be reluctant to make the judgments necessary to ascertain whether uploading is permitted. CHNM fears that users of the system will exercise undue caution when they make conscientious efforts to heed warnings about copyright infringement.
The result: a wealth of valuable, creative educational materials that could be used legally by the teachers who originally designed them will not benefit additional children in other schools. The lessons with African music recordings or photos from the Vietnam War cannot be distributed to peer teachers under the current copyright regime. The greatest value of such resources lies precisely in the integration of rich source material with educational content that explains and analyzes it. That value is lost in most cases. This is a particular impediment in emerging curricular fields such as world history (an alternative to more traditional western civilization courses), where textbook publishers may not adequately serve teachers’ needs, making reliance on self-created materials a necessity.
This case study illustrates one of the most difficult issues raised by digital technology: how can the interests of teachers and learners to use content flexibly be reconciled with the need to preserve reasonable incentives for creators and distributors of content? While adhering to prior law developed in an analog context foregoes many potential benefits of digitization, removing all limits would go too far in the other direction.
As in all of our case studies, CHNM has found a way to move forward with a more limited version of its original plans. But copyright law, far from assisting efforts to help teachers harness the power of digital technology, instead stood in CHNM’s path.
Back to Table of Contents[A more detailed version of this case study is here.]
A recent addition to the academy, film studies applies the techniques of established disciplines, including psychoanalysis, literary studies, and linguistics, to examine the art of cinema. Though a small group of intellectuals recognized the significance of film as a medium for artistic expression in the early twentieth century, film studies did not surface as an accepted area of scholarship until the 1960s. In the decades since, the popularity of film studies has spread dramatically, so that dozens of colleges and universities now offer undergraduate and graduate degree programs in film studies, and many more offer courses in the field. Technological advancement, including development of the DVD, has fueled this growth. And with the emergence of cinema as a crucial element of modern culture, film studies is certain to continue to develop as an important area of scholarly endeavor.
The ability of teachers and students to view and critique excerpts of film – essentially, movie clips – is a fundamental building block of serious study in this area. One of the most common means for professors to teach students about film is to show a series of excerpts from different movies that illustrate a common point. For example, a professor may wish to screen clips from different films that use a certain camera angle to produce a particular visual effect. Film studies professors also present and discuss relevant clips from assigned works during lecture, just as literature professors examine novels in class by reading important passages out loud.
Creating compilations of such excerpts (or, as they are sometimes called in a throwback to older technology, “clip reels”) should be a relatively straightforward process using DVDs. Digital technology should also enhance the ability for students to have access to clips for homework or other study outside of class, either online or through distributed DVDs. In fact, our research and interviews with film studies professors demonstrates that, for a combination of technological and legal reasons, the opposite has occurred. The DRM systems used on DVDs, and the restrictions of the DMCA, interfere with these educational uses of film content. We have found that many film studies professors nonetheless reap the benefits of digital technology for their teaching – but only by bypassing DRM systems in likely violation of copyright law.
Rightsholders almost always distribute film content on DVDs with DRM systems and a number of other technological limitations embedded in the discs. These technological barriers are reinforced by legal ones. As discussed above in section 1.2.3, the DMCA outlaws circumvention of DRM systems and the creation or distribution of circumvention tools. Even though showing a clip of a movie in class is unquestionably permissible, under both face-to-face teaching exceptions (see section 3.1.1) and the fair use defense (see section 3.2), the DMCA does not recognize any comparable exceptions. Professors who circumvent the DRM systems in DVDs to enable such uses thereby expose themselves to civil or even criminal penalties.
The most significant DRM barrier is CSS. Commercially available DVDs are encoded in CSS, an encryption and authentication scheme that prevents copying of video files directly from DVDs. CSS does not merely block DVD copying. Rather, CSS is an encryption system that scrambles DVD content and restricts playback to licensed devices equipped with keys for decoding the scrambled content. This encryption, combined with the terms of the CSS license, prevents copying by regulating the devices that play DVDs. Put differently, CSS restricts access to DVDs as well as duplication of them.
Copyright owners further restrict DVD access by limiting the geographic areas in which a disc can be played through region coding, another DRM system. A map of the coding system is set forth below.
Source: http://en.wikipedia.org/wiki/DVD_region
For example, DVDs sold in Europe (region 2) cannot be viewed on DVD players sold in the United States (region 1). Rightsholders use these access restrictions to control the timing of DVD release around the world so that it is possible to release a movie on DVD in one region, and in theaters in another, without running the risk that access to the DVD version of that movie will leak across regions and interfere with theater attendance.
Finally, as anyone who watches DVDs at home is painfully aware, many contain navigation restrictions that force playing of previews, copyright warnings, or even advertising content (and often prevent fast-forwarding) before gaining access to the feature film. While not formally DRM systems, such features prohibit easy movement between different sections on a DVD in ways that further undermine a film studies professor’s practical ability to make use of its content. They certainly negate any argument that a professor could simply insert a DVD into a player and bring up the desired scene during class rather than creating clip reels. For example, in order to show students clips from five different DVDs during a single class, the class would have to waste valuable time waiting for previews and copyright warnings to play on each of those discs before showing the desired clips.
Our research indicates that many film studies professors – probably most of them – respond to these difficulties by circumventing CSS, region coding, and navigation controls, despite the likely illegality of doing so. Those who abide by the law face enormous practical difficulties in their everyday teaching.
Software tools capable of circumventing these DRM systems became available as early as 1999. Since then, developers have created numerous tools that allow users to copy and manipulate DVD content. For example, Fast DVD Copy 4 by Velan is a popular program among film studies professors that allows users to duplicate CSS-protected DVDs and remove region and navigation restrictions from the copies it creates. Other programs with similar functionality, such as Forty-Two DVD-VX Plus and MacTheRipper, are also available. Notably, manufacturers and distributors of these programs risk sanction under the DMCA. The courts have enjoined several manufacturers of circumvention software, prohibiting further distribution of their programs. Nevertheless, film studies professors continue to rely on these programs, and software manufacturers continue to produce them.
After creating a DRM-free copy of a movie, it is possible to isolate and extract desired movie excerpts using editing tools such as Cinematize. Cinematize allows users to extract video and audio clips from DVDs and save them in a variety of formats compatible with popular movie and audio editing applications. The developers of Cinematize, cognizant of the liability issues surrounding the manufacture and distribution of software capable of circumventing CSS, did not include such a decryption feature in the program. Nevertheless, as advertised on the Cinematize website, “Cinematize is fully compatible with decrypted output from all the popular [] decryption tools available.” By combining tools such as Fast DVD Copy 4 and Cinematize, professors can (and do) harness the full power of the DVD format.
The advantages for film studies of digital content over older analog formats are significant. Liberated from the constraints of CSS, the digital information stored on DVDs permits rapid duplication, without concomitant degradation in quality. Once region codes are overridden, professors can introduce students to movies never before available in their geographic region. In addition, absent navigation restrictions, DVD content is more readily searchable than analog media, permitting instantaneous navigation by title, chapter, and timecode. In sum, DVDs stripped of these DRM systems allow film studies professors to duplicate content, create clip compilations that they can show in the classroom, and navigate DVDs in order to avoid wasting time.
Clips taken from videotape or other analog formats are not adequate substitutes for the educational needs of these professors. Most obviously, the resultant copies are lower in quality than the originals (which most likely were already inferior to DVDs of the same film). A sophisticated analysis of cinema requires access to a version of the film in excellent quality, not the grainy images found on bootleg videos. Tape also must be copied in real time, making the creation of larger clip reels unrealistic. Finally, some analog formats do not lend themselves to creation of clip compilations whatsoever. For example, most professors do not have access to the equipment necessary to duplicate and splice clips from 16-mm film.
As a supplement to presenting segments of works in class, film studies professors occasionally distribute excerpts of works to students as part of the course curriculum – either by handing out physical copies, or by posting content on an intranet. Creating DVD copies of excerpts is the most efficient, cost-effective way to distribute this content to students. DVDs are faster to copy and less expensive to create than other media. And these five-inch plastic discs produce higher quality, more durable copies than other formats. Further, DVD players are ubiquitous on college campuses – available on computers, in libraries, and in dormitories. In contrast, certain analog formats, such as 16-mm, are difficult to duplicate, and even if duplication were possible, most students would not have access to the projectors needed to view most such formats. While VCRs are readily accessible, creating videotape copies of movie segments for individual students is prohibitively expensive and time consuming. For these reasons, film studies professors depend on DVDs to create physical copies of media for students.
Professors who wish to distribute movie clips online encounter issues similar to those faced when distributing physical copies of content. Posting analog content to the internet (or an on-campus intranet) is a costly and time-consuming proposal, since it is necessary to digitize analog content before putting it online. This conversion reduces the quality of formats such as 16-mm film, since some resolution is lost during digitization. Clips from DVDs, in contrast, are easily compiled and posted to with the use of software tools such as Fast DVD Copy 4 and Cinematize. Unsurprisingly, the majority of film studies professors who post content online derive that content from DVDs.
At present, there is an uneasy equilibrium that tacitly permits film studies professors to carry on with systematic violations of the DMCA for educational purposes. Film studios appear unwilling to take the potentially unpopular step of suing professors for studying their work; universities appear generally to turn a blind eye to DMCA violations perpetrated by their faculty. This apparent equilibrium is dangerously unstable, however. First, rightsholders could choose at any time to revoke their implicit tolerance of DMCA violations. Indeed, teenagers and college students who used peer-to-peer file-sharing services likely felt that their activities were unlikely to result in litigation until the recording industry adopted an aggressive strategy of pursuing such cases. The same could occur in this context – and most likely only one rightsholder needs to bring one action in order to chill these now-common educational uses of film content.
Second, even if the educators themselves do not become targets, they could lose access to the circumvention tools necessary for them to use DVDs effectively. Already, the U.S. government and the film industry aggressively target such products through the legal system. In addition, there is an ongoing “arms race” between DVD distributors and the hackers who create circumvention tools, with new DRM systems introduced frequently and then new technology developed to bypass them. A combination of a simultaneous improvement in DRM technology for DVDs and a legal crackdown on DMCA trafficking violations could leave film studies professors without practical technological means to bypass DRM systems. While a few may have the technological sophistication to design their own circumvention mechanisms, most professors would be left unable to use DVDs in their teaching at all.
Here, as in other case studies, many educational uses of content are proceeding despite obstacles. In this instance, however, the benefits are realized only by breaking the law. An increase in legal enforcement, against either educators themselves or developers and distributors of circumvention tools, would prevent such uses. The deployment of CSS and enforcement of the DMCA may be motivated by reasonable fears about large-scale piracy of Hollywood new releases. They have the bizarre side effect, however, of turning film scholars into outlaws.
Back to Table of Contents[A more detailed version of this case study is here]
New World Records (NWR) is a non-profit corporation that sees itself as analogous to a university press for American music. Its mission is to promote awareness of and access to the works of U.S. composers who are not distributed on mainstream record labels. NWR sells to individual customers, but its main market is libraries, which “subscribe” to NWR’s releases, meaning that they receive a copy of every album NWR puts out at a discounted rate.
NWR is committed to the idea that digital delivery is the future for music. It has launched a multi-million dollar effort to create a digital database of music for library and scholarly use, the Database of Recorded American Music (DRAM), a model analogous to JSTOR for scholarly journals and ARTstor for art images. Initial funding for the project, which aims to become self-sustaining, comes from the Andrew W. Mellon Foundation and Robert Sterling Clark Foundation. DRAM, developed in collaboration with New York University, will be offered at some 100 universities by the end of 2006, either as paying customers or on a free trial basis in the hopes that the schools will subscribe once they experience the DRAM’s benefits. The Database includes recorded selections already distributed by NWR through its existing catalog of CDs and those culled from partner labels with similar lists.
The process of converting to a new method of delivery required a detailed review of intellectual property rights. Because NWR champions underrecognized composers, it is especially committed to protecting their copyright-related financial interests, so ensuring fair compensation for these creators was a high priority. Even armed with this commitment and comparatively generous funding for a nonprofit educational project, DRAM faced many difficulties in its efforts to secure the necessary licenses.
Even before the advent of digital technology, the legal issues around music licensing were very complicated. A musical recording is protected by two separate copyrights, one for the underlying musical composition and another for the recording as a fixation of a specific performance of the music. As a record label, NWR owns copyright in the sound recordings of most selections in its catalog (with the exception of a few recordings included in particular albums under licenses). However, NWR still needed to secure digital distribution rights for the musical compositions. In addition, these music-related rights implicate two quite complicated aspects of the copyright regime. First, section 115 of the copyright statute creates compulsory licenses for certain sound recording rights. Under a compulsory license provision, rightsholders are not allowed to deny permission for the uses covered by the provision, and the royalty rate they receive is set by some statutory mechanism. The second complication is the prevalence of intermediaries (such as the “performing rights organizations,” ASCAP, BMI, and SESAC) for licensing of certain rights to copyrighted music. These intermediaries serve as clearinghouses, managing licensing activities on behalf of many distinct rightsholders. In the simplest case, for example, radio broadcasters pay these intermediaries for blanket licenses covering all the rights they manage, and the fees are then distributed among individual rightsholders under complex formulae.
This complex legal tangle grew still more confusing with the arrival of digital music delivery. There is great uncertainty about whom should be paid for digital distribution and how much they should be paid. Under the terms of a voluntary 2001 agreement between the Recording Industry Association of America (RIAA) and the National Music Publishers Association (NMPA), record labels that belong to RIAA pay an advance on royalties for rights to use music compositions in digital delivery, even though the actual royalty rate has not yet been set. The Harry Fox Agency, an intermediary used by many publishers to manage royalties, has collected those payments on behalf of the NMPA. Meanwhile, however, performing rights societies have also issued licenses for interactive streaming of compositions. Thus, cautious entities may find it necessary in this uncertain environment to pay twice for the right to stream a composition on demand. Although Congress is currently considering legislation, the Section 115 Reform Act, which would attempt to rationalize the licensing and royalty process for digital delivery of music, details of the legislation are highly controversial and the prospects of passage remain uncertain at this writing.
NWR ventured into this quagmire in an effort to clear the rights necessary to launch DRAM. NWR’s original conception of the Database involved providing downloads of music files to professors for classroom use. In addition, DRAM would give students access to on-demand or interactive streaming – the ability to listen online to a requested recording, without the capacity to download a copy for future use.
Composition rights for more than half of the content in the DRAM are controlled by an estimated total of at least 700 separate entities that are not represented by Harry Fox and not covered by the RIAA-NMPA agreement. Because there was no central intermediary, each one needed to be contacted individually. NWR wrote letters to these publishers explaining DRAM and requesting permission to (1) extend existing CD distribution rights and royalty terms to digital downloads and (2) track usage figures for on-demand streaming but delay payment of royalties until the legal system clearly established applicable rules and rates. Many publishers and composers responded favorably to these license requests, but those that did not required follow-up communication, sometimes repeatedly. Tracking the progress of the effort required a significant investment of time and organizational skill.
Clearing permission for the approximately 38 percent of DRAM works represented by the Harry Fox Agency proved in fact more challenging, despite the centralized licensing source. NWR requested the necessary permissions several times and was unable to elicit a response. It appeared that Harry Fox was disinclined to pay attention to such a low-volume, low-profit project. As NWR stated, “A frustrating stumbling block appears often when we describe the function of New World Records and our activities as ‘not-for-profit’ and ‘educational.’” Finally, NWR decided to apply for RIAA membership in the hopes of taking advantage of the RIAA-NMPA agreement. Mention of this membership application succeeded in attracting Harry Fox’s attention at last. This led to acceptance of NWR’s request for downloading licenses and, after its RIAA application was approved, for interactive streaming licenses according to RIAA’s agreement with NMPA.
A further challenge came in dealing with Harry Fox’s fully automated license application process. Harry Fox requires a formatted computer file containing 28 data fields about compositions to be licensed, such as title, composer, publisher, and so forth. A lack of established industry standards meant that the data that NWR and its partner labels already maintained for purposes of royalty payment was different from the data tracked by Harry Fox. After some additional data processing and formatting, NWR eventually was able to submit the required information and secure licenses from Harry Fox.
Finally, as explained in more detail in the full case study, NWR also sought other miscellaneous licenses required in certain circumstances: additional (and perhaps duplicative) licenses from performing rights organizations such as BMI and ASCAP; grand rights for musical theater works; and rights to reproduce certain textual material, such as liner notes, for scholarly reference.
All told, rights clearance for DRAM consumed several years and enormous amounts of staff effort and expense. The small scale and nonprofit status of the initiative often made rightsholders or their intermediaries less interested in responding to those efforts.
Even after clearance was complete, DRAM faces another obstacle which has not yet been overcome fully. All downloading licenses from Harry Fox include particular requirements for the use of DRM to secure files. At present, the only compliant DRM solutions available, such as those offered by Apple’s iTunes and Microsoft’s MSN Music, are geared toward – and priced for – profit-making distributors. NWR has been unable to find a DRM system that would allow it to take advantage of the downloading licenses. For now, the component of the Database project allowing professors to download music has been shelved.
Far from complaining about these problems, NWR told us that it believes the copyright system basically worked in the development of DRAM. Because of its commitment to ensuring that composers are compensated for their work, and through the hard work of its staff, NWR persevered and is now rolling out a valuable resource to aid the study of music in higher education.
Yet even NWR was forced to compromise, both in omitting titles that could not be cleared and in foregoing a downloading option because of the impracticability of deploying DRM. Furthermore, it is important to note that NWR enjoyed certain advantages that many educational users of content would lack. For example, NWR already controlled significant portions of the rights necessary for the project; it was comparatively well-funded and could absorb the high transaction costs involved in clearance as well as the licensing fees themselves; it was able to join the RIAA and thereby get the attention of Harry Fox and the benefit of the RIAA-NMPA agreement; and it devoted staff to clearance-related tasks who built up expertise in the process. Smaller educational efforts would not enjoy these benefits – indeed, one would expect rightsholders and intermediaries who ignored NWR’s licensing approaches to be even less responsive to smaller entities with still fewer resources.
The relatively happy ending for DRAM is cause for both celebration and concern. NWR’s ultimate success, of course, is heartening. On the other hand, the copyright system, here as in our other case studies, hindered rather than assisted NWR’s efforts.
Back to Table of Contents[A more detailed version of this case study is here]
WGBH Boston (“WGBH”), a member of the Public Broadcasting Service (“PBS”), operates the public television stations in Massachusetts, and it also produces approximately one-third of PBS’s primetime content. WGBH is responsible for some of the most well-known and widely viewed PBS programming, such as Frontline, American Experience, and Nova. WGBH is also one of the largest contributors of content on the PBS.org web site. Like other PBS stations, it operates as a nonprofit enterprise with the goal of producing educational media for the benefit of the public. WGBH depends upon a combination of private grants and contributions and government funding to finance its work. As a result, it must produce content subject to resource restraints that do not apply to commercial broadcasters. The federal government now provides only 15 percent of public television funding. Corporate or foundation underwriters are important sources for the remainder, and they typically require broad distribution of content as a condition for their support of a program.
In recognition of the limited resources available to public broadcasting entities and the important educational goals they pursue, Congress included several special provisions, further discussed below, for the benefit of public broadcasting providers in the Copyright Act of 1976. WGBH fully utilizes those special rights, which were designed to ease clearance difficulties and costs for public broadcasters. Unfortunately, those 30-year-old provisions are not well-suited to new technology and digital distribution formats. As a result, the provisions have become nearly meaningless relics of a time when the only method of distribution was on-air broadcast. Increasingly, WGBH and all of public broadcasting face challenges in efforts to produce and distribute both new content and older, archived materials.
Most of the special statutory provisions are somewhat complex. One of them, found in section 114(b) of the Act, simply allows public broadcasters to use copyrighted sound recordings in programming without permission or payment. A more detailed compulsory licensing scheme under section 118 allows public broadcasting producers such as WGBH to avoid the time-intensive and costly process of negotiating licensing deals to use “published nondramatic musical works and published pictorial, graphic, and sculptural works.” In those cases, the public broadcaster need not ask permission, and instead pays a predetermined royalty rate. The exemption under section 114(b) applies to educational programming “distributed or transmitted by or through public broadcasting entities.” The section 118 compulsory license is available for qualifying content included “by or in the course of a transmission made by a noncommercial educational broadcast station.” Finally, section 118 provides an exemption from antitrust laws under which public broadcasters can negotiate with rightsholders for blanket licenses. PBS has reached a number of agreements with rightsholders as a result, which also benefit WGBH.
In the past, the statutory provisions have been helpful to WGBH in its mission to produce high-quality educational programming with limited resources. One such example is WGBH’s production of LAPD Blues, a 2001 documentary about corruption in the Los Angeles Police Department and links between some corrupt officers and the controversial rap music label Death Row Records. The producers of LAPD Blues relied extensively on the use of rap music to depict the “gangsta culture” that they contend infiltrated the LAPD. The composition rights to this music were covered by the compulsory licensing regime, while the special exemption for sound recordings eliminated any payment for those separate rights. Thus, WGBH required no permission for uses that rightsholders certainly might have tried to prevent, given the critical light in which the program placed the record label. Payment for use of the content was limited and predictable (not always the case with contemporary commercially popular music) and WGBH avoided the difficulty and costs of negotiating with rightsholders. It would have been impossible for WGBH to use this music in LAPD Blues without relying on these special statutory rights. The resulting program would have been less powerful.
Today, public broadcasters feel they must distribute their programming through new formats such as internet streaming, home video and DVD, audio and video podcasts, and on-demand video. Use of these platforms clearly improves the public’s access to content and assists WGBH in fulfilling its educational goals. In addition, while WGBH and other producers distribute through some of these technologies without charge, revenue available from other formats (such as DVDs) helps support public broadcasters’ financing of program production and pursuit of their nonprofit mission.
WGBH has also sought to deploy new technologies as tools to better serve its basic educational goals by disseminating content in different configurations. A comprehensive example of this is WGBH’s Teachers’ Domain website. Teachers’ Domain is an online educational service that offers teachers a variety of materials to enhance their students’ experiences in the classroom and their own teaching skills. The site features multimedia materials for classroom use, many of which incorporate clips from programs such as Nova and American Experience. These materials are divided into sections based upon subject matter and targeted grade level, making it easy for teachers to access tools and information relevant to their individual classrooms.
In this environment, WGBH has decided that all the programming it produces must be suitable for distribution on multiple platforms, not only through domestic broadcast on public television stations. This shift to digital distribution technologies severely undermines the efficacy of the statutory provisions on which public broadcasters have relied. Because of its reference to “transmission made by a noncommercial educational broadcast station,” the statute establishing the compulsory licensing regime clearly excludes non-transmitting media such as DVDs. The status of other digital forms of transmission, such as internet streaming, remains murky at best. The conflict between developing technology and static law presents two distinct challenges to public broadcasters, involving efforts to distribute existing archived programming and the use of content in new programming.
First, if public broadcasters have relied on their statutory rights when they originally used content in programming, and if those rights do not extend to new distribution formats, then vaults full of valuable content will gather dust rather than being made available in an efficient manner for public education. With great effort and expense, WGBH can clear the rights necessary to make an archived program available, but the costs are too high to make this anything other than a rarity. One success story in this category is Eyes on the Prize, a 1987 documentary about the civil rights movement considered among the best and most compelling films of its kind. The program was composed entirely of third-party materials, including music, pictures, quotations, and news footage. Use of much of the material (such as Motown songs and other music of the times) was protected under the special statutory provisions – but not for new distribution platforms. The expiration of some licenses to use content and the limitation to broadcast for others further complicated the licensing scenario. As a result of these combined problems, the acclaimed documentary was completely unavailable for some years. WGBH was finally able, after Herculean efforts, to clear enough rights to broadcast the program again and to make it available through some digital platforms – but still not through DVD sale or rental.
More common is the fate of a ten-hour WGBH-produced series entitled Rock & Roll that tells the story of rock and roll from the perspective of its most prominent artists and innovators. Despite high demand, the documentary has not been made available on VHS tape or DVD since its broadcast because of the practical difficulties and overwhelming costs involved in clearing home video rights to the songs and recordings featured in the film. Moreover, the inability to use content from prior programs in derivative educational works makes it very difficult to assemble resources such as Teachers’ Domain, which draw on segments of programming contained in WGBH’s archives.
In some cases, although it is labor-intensive, producers may be able to modify programs by removing content first used under statutory protection if it cannot be cleared for other formats. WGBH created a version of LAPD Blues that contained only original composed score music for use in home video and foreign broadcast. Not surprisingly, the resulting production lost a great deal of its impact when the rap music at the center of its narrative was deleted. Furthermore, this kind of substitution creates unease among producers. Among their worries is the concern that such modifications amount to a “bait and switch,” which confuses and potentially angers audiences who sought out programming after seeing it broadcast in its original superior form.
These concerns lead directly to the second problem that arises from a narrow interpretation of the statute’s provisions for public broadcasters. WGBH and other producers often make editorial decisions about what type of content to include in programs they are producing for broadcast based on how using that content could restrict future distribution in other formats. Even when producers have the option of invoking compulsory licenses to acquire rights to content for broadcasting purposes, therefore, they are increasingly reluctant to exercise this privilege. One small production company that works with WGBH has decided that all music in its programming for public broadcasting will be originally scored, because this solution is more efficient and cost-effective than using existing music and clearing rights. Thus, a provision intended to help public broadcasters is becoming an unused relic when they produce new programming for broadcast.
These basic problems of changing technology are only the most serious flaws of the statutory provisions, all of them magnified by digital technology. The other problems are discussed further in the full case study. In combination, the shortcomings of sections 114 and 118 mean that WGBH can rarely rely upon them any more.
The public uses educational media quite differently today than it did when the 1976 Copyright Act was adopted. Despite the difficulties presented by the disconnect between the statute and technological realities, WGBH continues to move ahead delivering publicly beneficial programming, and using copyrighted content to do so. As in other case studies, however, copyright law and institutional practices surrounding it impede this educational mission rather than advancing it. WGBH believes that ultimately it is the public that suffers from the limitations public broadcasting producers face when using, or not using, copyrighted content in digital learning resources.
Back to Table of ContentsLawyers tend to look first to legal regimes when surveying the landscape of a public policy issue. At times, this is the wrong place to begin, because economic or social forces play a greater role in shaping practices. In studying educational use of content, however, the law is the natural starting point: all of those other forces operate in the shadow of copyright law. Copyright single-handedly creates the monopolies that underpin economic interests in this area, and it profoundly shapes norms and institutional practices concerning the use of content.
The next several subsections review and analyze exceptions to copyright that may protect uses of content for digital learning. It finds that they are frequently narrow, cumbersome, incompatible with new technology, or vague. The penultimate subsection discusses the potential consequences for educators whose unauthorized use of content is found to fall outside of these exceptions: a potential infringement suit, steep legal fees, and substantial damages. The final subsection briefly considers different treatments of these legal issues in other selected countries outside the United States.
Back to Table of ContentsWhile the fair use doctrine (discussed below in subsection 3.2) is the centerpiece of copyright exceptions applicable to digital learning, there are several narrower provisions intended to benefit educational uses of content. In general, their specificity provides clear protection for those activities that fall within their confines. That same specificity often makes these exceptions narrow and bound to particular technology, however.
Back to Table of ContentsThe most straightforward educational use exception is the classroom use exception, found in section 110(1) of the Copyright Act. Under this provision, the following activity is exempt from any copyright liability:
Despite this intent to design a broad and technologically neutral exception, however, Congress has not kept the statute up to date. It can handle reasonably well the use of once-current methods (such as mechanical slide shows and wall charts) in traditional settings (as the statute says, in a “classroom or similar place” housed within a “nonprofit educational institution”). Some digital learning activities also seem to fall squarely within this language: presumably teachers may stand in front of a class and show PowerPoint slides incorporating third-party content, display web pages, or play digitally stored music clips designed to illustrate aspects of a lesson. Students, too, may engage in similar activities within the confines of the classroom.
The classroom use exception may not apply, however, to activities that move beyond its fairly narrow conception of time and space. Increasingly, digital learning does just that. A class web page, blog, or wiki, for example, would extend beyond the classroom walls and perhaps beyond the classroom use exception – even if online access were limited to teachers and students. While “pupils” are among those entitled to its protection, the classroom use exception does not appear to shelter student projects undertaken as homework, only the display of such work as part of “face-to-face teaching.” Finally, of course, this provision has no bearing on any digital learning outside the traditional classroom structure, whether extracurricular activity, web-based or open source educational projects, or scholarship.
While the exception immunizes teachers from liability for the public performance rights involved in displaying content in the classroom, other rights, including reproduction rights, are not included. When teachers simply displayed directly an analog copy of the work, this was sufficient. In a digital environment, however, incidental reproduction is commonplace – as when a teacher inserts an image into a PowerPoint slide. This problem is clearly demonstrated in the Center for History and New Media case study. While there are good arguments that the reproduction is protected under the fair use doctrine, the omission of other rights certainly limits the effectiveness of the classroom use exception.
Furthermore, the exclusion of films and audiovisual work if a teacher shows a “copy that was not lawfully made” interacts perniciously with DRM-like technology. The professors in our film studies case study bypass encryption technology in DVDs to make clip reels for display in class. The DMCA forbids such circumvention of DRM. Thus, even if the only way these professors use the content is in “face to face teaching activities,” this clause nonetheless strips away the protection of the classroom use exception. As more and more content becomes laden with technological measures to prevent copying, increasingly this exception to the exception will constrain the effectiveness of the entire provision.
Thus, even where educational use is essentially impossible without reproducing digital content or circumventing DRM, the benefits of section 110(1) do not apply. The boundaries of this exception do not mesh well with the realities of digital technology.
Back to Table of Contents[A more detailed paper from the Digital Learning project analyzing the shortcomings of the TEACH Act is here. A chart prepared by Professor Laura N. Gasaway summarizes the provisions of the TEACH Act and classroom use exception in graphical form]
The Technology, Education and Copyright Harmonization Act of 2001 (TEACH Act) represents an attempt by Congress to update educational use exemptions in light of new technological realities. Section 110(2) of the copyright statute had been enacted at a time when closed-circuit television and radio were the only distance learning technologies. By the late 1990s, its provisions clearly had become outdated. The Copyright Office recommended changes, and Congress authorized a fuller study of the issue in 1998. As the legislative proposal evolved, it incorporated numerous compromises between representatives of educators and rightsholders, and it was the subject of significant lobbying by content industries.
In its final form, the new provision for distance learning did provide some limited additional protection for educators operating in a digital environment: it expanded the types of content that could be used; it allowed the digitization and short-term retention of content that the internet and similar technology require; and it eliminated a provision that generally required students to be physically present in the same location. However, a number of stipulations sought by rightsholders were also incorporated in the statute. In combination, these restrictions so limit the reach of the TEACH Act, and make it so difficult for educators to comply with its requirements, that most observers believe the exception from liability it offers has little or no value.
One of the statute’s primary problems is that the scope of digital learning it covers is so narrow. The TEACH Act applies only when the educational use of content is “an integral part of a class session offered as a regular part of the systematic mediated instructional activities of a governmental body or an accredited nonprofit educational institution.” Further, the content must be for the sole use of “students officially enrolled in the course for which the transmission is made.” (There are also narrow exceptions for government employee training.) The references to class sessions, accredited institutions, and official enrollment make it clear that legislators imagined the TEACH Act applying only to endeavors that resemble traditional classroom instruction in every possible way, except that they occur through digital technology such as the internet. Indeed, its coverage may represent no more than a modest update of the “face-to-face teaching” standard under the classroom use exception. This bias excludes, for example, an adult education class offered by a nonprofit but unaccredited institution; asynchronous instruction and discussion that occurs outside of class sessions at preset uniform times; and even access to material by students in other related classes at the same institution.
A second set of problems with the practical implementation of the TEACH Act involves DRM and similar technological access restrictions, also discussed in detail in section 4. The statute requires that, in order to benefit from its protection, educational institutions transmitting digital content must use technological measures that “reasonably prevent retention of the work … for longer than the class session” and “further dissemination of the work” to others. Implementing such technological measures requires significant levels of financial resources, skill, and technological capacity. Even if the courts were to read this provision very liberally – and interpretations of the DMCA from courts thus far display the opposite tendency – the most favorable possible interpretation would require that educators who circumvent DRM protections in order to make use of digital content must restore that DRM in its entirety prior to any dissemination of the content. As we see from the New World Records case study, this is an expensive proposition, and likely infeasible for all but the most wealthy or technologically sophisticated institutions. Individual grass-roots educators or elementary and secondary schools would be incapable of complying even with this most generous interpretation. Furthermore, the requirement that content be accessible solely during a class session means that a teacher cannot leave content available to students to refer to after the lesson has been completed.
Finally and perhaps most significantly, an additional requirement bars interference with underlying DRM restrictions imposed on content by rightsholders. As such DRM protections become increasingly common, this rule may eviscerate the TEACH Act altogether. In order to distribute digital content for distance learning, even in full compliance with all other requirements of the TEACH Act, educators almost surely need to override DRM – after all, they are about to distribute digital content on a network, precisely the conduct DRM systems aim to prevent. As the use of DRM systems spreads, then, the TEACH Act will provide a theoretical right to use digital content but simultaneously will ensure that little such content is actually available for legal use in the real world. Ironically, it will do so even if educational institutions assiduously comply with the Act’s other provisions and add their own robust DRM to the content they disseminate.
Back to Table of ContentsSection 108 of the Copyright Act codifies certain exceptions intended to allow libraries or archives to engage in their missions of preservation of content and making content accessible to the public. Under its terms, libraries or archives may make limited copies of content in their collections for purposes of preservation or to replace damaged or lost copies of works. Section 108 also permits limited copying of certain works by patrons for their personal use. Mary Rasenberger and Chris Weston of the U.S. Copyright Office have prepared a background paper providing a comprehensive history of these exceptions and a detailed explanation of the present contents of section 108.
Not surprisingly, because Congress enacted most of these provisions in 1976, they mesh poorly with the needs of librarians and archivists dealing with digital content, from DVDs to web sites. In response to these concerns, the Librarian of Congress has convened a Section 108 Study Group with representatives of different stakeholders to review the current provisions and recommend changes. The Group has held roundtables in several major cities, accepted written comments, and otherwise sought feedback from those affected by section 108, and expects to submit its findings and recommendations to the Librarian later this year.
Earlier this year, in advance of the roundtables, the Group promulgated a background document summarizing some of the issues likely to arise in reviewing possible amendments to section 108, including: (i) the lack of a definition of qualifying libraries or archives, leaving ambiguous the status of virtual digital-only collections such as the Internet Archive; (ii) the limited number of copies allowed; (iii) allowing replacement copies of digital content that is unstable or at risk of loss; (iv) permitting off-site use of digital content; (v) the relationship of Section 108 to the DMCA; and (vi) special issues surrounding preservation, particularly of web sites.
As this long list of deficiencies makes clear, section 108 is yet another example of a narrow educational use exception that has failed to keep pace with technological change. The prospects of any recommended statutory changes remain unclear at this time. If the Group can forge consensus to update section 108, it may serve as a model for other legislative initiatives aimed at facilitating educational use of content.
Back to Table of ContentsAs explained in more detail in the WGBH case study, several provisions of sections 114 and 118 provide targeted provisions for the benefit of public broadcasting. One such provision, found in section 114(b) of the Act, simply allows public broadcasters to use copyrighted sound recordings in programming without permission or payment. A compulsory licensing scheme under section 118 allows public broadcasting producers such as WGBH to avoid the time-intensive and costly process of negotiating licensing deals with certain other rightsholders when creating content to be distributed through public broadcasting. The somewhat complex arrangements apply to copyrights in “published nondramatic musical works and published pictorial, graphic, and sculptural works.” Most of the intermediaries that negotiate rights for this content, spurred by the existence of the compulsory license, have reached separate agreements with PBS and its affiliates governing the use of content. However, as public broadcasters distribute their content in newer digital formats, from DVDs to internet streaming, statutory provisions keyed solely to traditional over-the-air broadcast may be rendered essentially useless.
Back to Table of Contents[A more detailed paper from the Digital Learning project analyzing the fair use doctrine as applied to educational use is here. A recent study of fair use from the Brennan Center for Justice, although not limited to the educational context, provides further background and context. The Stanford University Libraries maintain a comprehensive page of resources about fair use here.]
If the educational use exceptions are excessively specific and narrow, the fair use doctrine presents exactly the opposite problem. The fair use doctrine has evolved through over a century and a half of judicial decisions as a defense to copyright liability governed by a very general set of standards. The only way to predict whether the doctrine will immunize a particular use from liability is to analogize the facts at hand to those of other cases that have come before the courts in the past. This open-ended structure gives the fair use doctrine important flexibility to deal with myriad situations left uncovered by the various particularized exceptions to infringement, such as educational use exceptions that fail to anticipate new technology. At the same time, however, this uncertainty frustrates institutional educational users who feel pressure to establish clear rules for educators, librarians, and students concerning the legal use of copyrighted works.
The essence of the current fair use doctrine dates back at least to Folsom v. Marsh, an 1841 decision by Justice Joseph Story. The doctrine continued to evolve for over a century. In its 1976 overhaul of the Copyright Act, Congress codified the fair use doctrine for the first time, without modifying the doctrine or removing from the judiciary the power to determine its boundaries. The current fair use provision, found in section 107 of the statute, reads:
At first blush, there are two reasons for optimism that the fair use doctrine, given its flexibility, might protect many educational uses of content from liability, including some of the digital learning initiatives discussed in this report.
The first ground for optimism lies in the text of the statute itself. In two separate places, section 107 singles out educational uses as deserving particular deference in the fair use calculus. First, the preamble lists educational activities such as “criticism, comment, … teaching (including multiple copies for classroom use), scholarship, or research” as illustrative examples of fair use. Then, the first factor of the more specific four-part test contrasts “commercial” uses with those of a “nonprofit educational nature,” indicating that uses of the latter type are more likely to qualify as fair uses. In both places, the statute itself goes out of its way to signal that educational uses are especially likely to constitute fair uses.
The second ground for at least guarded optimism is the fact that, in all the vast case law over fair use, virtually no decisions apply the fair use test directly to educational defendants who made educational uses of content. The closest cases are probably those involving commercial copy shops’ production and sale of “coursepacks” of supplementary readings assigned by professors at nearby universities. [More information on those cases is available on this web page maintained by the Stanford University Libraries.] It is noteworthy that these decisions considered the liability of the commercial businesses who extracted profit from the sale of materials for educational use, not the teachers making nonprofit educational uses of content. Another high-profile coursepack case involved New York University as a defendant, but it was settled by the parties in 1983 before any judicial decision. Even the legal complaints filed against the Google Library Project emphasize the commercial nature of the advertising-supported search engine.
This near-total absence of lawsuits against educators may suggest that rightsholders have tacitly accepted that the appropriate construction of the fair use doctrine leaves significant room for educational uses of content, or that they fear a negative public reaction if they sue educators. That said, workshop participants and others interviewed in our research were aware of recent litigation threats by legal representatives of publishers against several large research universities. The publishers’ counsel apparently believed that digital distribution of some course materials extended beyond the boundaries of fair use. Some of those familiar with the private negotiations that ensued said they believe the publishers’ counsel were seeking a test case of their own, perhaps hoping to force settlements in which universities voluntarily limit their use of digital technology. It is not yet clear whether these discussions will lead to private settlements or evolve into litigation.
Overall, when we consulted teachers, lawyers, librarians, and educational administrators involved in these issues, they were generally pessimistic about the scope of fair use to protect their digital learning activities. The paucity of direct guidance from cases involving educational uses of content causes anxiety and uncertainty in educational institutions. When examining the most analogous case law, there are indications that common educational uses might not benefit from the fair use doctrine as it is currently construed. Nevertheless, some scholars and librarians with whom we spoke did believe that educators, universities, libraries, and private individuals now feel more emboldened than they were in the past to rely on more robust interpretations of fair use.
Back to Table of ContentsThe statutory text has not always proved as helpful to educational users as one might assume, despite its two prominent references to educational uses. Courts rarely rely on the preamble of section 107 as the basis for decisions on fair use. The other mention of education, in the first factor of the test, has also been minimized in some decisions. Several influential cases have shifted the focus of the first factor from the commercial nature of the use to the existence of any benefit for the user. In particular, a 1985 Supreme Court case, Harper & Row Publishers, Inc. v. Nation Enterprises, held that the inquiry under the first factor was “not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” This shift in emphasis from pecuniary gain to more general benefits has been repeated in subsequent cases. In an appeals court decision finding that the Napster file-sharing system was not entitled to a fair use defense, for example, the court upheld a determination that even a user who listened to a song once solely to determine whether or not to buy a CD was nonetheless engaged in “commercial” use for purposes of fair use analysis.
Of course, taken to its logical conclusion this premise would destroy the entire fair use defense, as it is difficult to imagine why any defendant would use any content in the first place if that content provided no benefit. Because teachers and their students surely benefit from educational uses of content, they may still lose on the first factor – despite the specific language included there about “nonprofit educational purposes.”
Similarly, analysis of the fourth factor, concerning the market impact of a use, increasingly focuses on all possible future revenue a rightsholder could extract, regardless of whether such markets exist at the time or not. For example, earlier this year in Perfect 10 v. Google a court found that Google’s “Image Search” function, which responds to search terms by showing miniature “thumbnails” of images available on the internet, harmed the potential market for downloading such low-resolution images onto cell phones. This will also be an important focus in the Google Library dispute, because the publishers and authors argue that they are denied licensing fees for indexing their books, even though no such opportunity exists today. In an environment of pervasive and often automated licensing, plaintiffs almost always point to some manner in which they possibly could extract revenue for an allegedly infringing use, even if the quantity of the work used is small and the context is changed. In conjunction with the first factor, this interpretation turns seemingly noncommercial educational uses into lost business opportunities and slants this factor to favor plaintiffs.
A further evolution of the analysis under the first factor of the test may also disserve educational users. Increasingly, courts considering the first factor ask whether or not a use “transforms” the content (as in instances of parody or satire), thereby increasing the likelihood of a fair use finding. Arguably, most educational uses of content are faithful reproductions of original content for purposes of analysis or teaching, and as a result they would fare poorly in this evaluation. On the other hand, the leading case of Kelly v. Arriba Soft, involving inline linking to images on the web by a visual search engine, found that a use could be transformative if it served a different informative purpose than the original content. The Second Circuit used similar reasoning in a recent case, Bill Graham Archives v. Dorling Kindersley Ltd. (although the Perfect 10 case noted above leans the other way). Educational uses might fare better under these broader articulations of the transformativeness standard.
Finally, cases in areas somewhat related to the core of digital learning suggest that courts may tend to take a narrow view of fair use for educational purposes. As discussed in greater detail here, judicial decisions involving study aids, biographers, documentary filmmakers, and others have sometimes rejected fair use defenses. Because these cases involve various factual differences from the digital learning environment, their meaning is open to interpretation. At a minimum, however, they fail to provide any certainty to educators hoping to rely on a fair use defense.
Back to Table of ContentsAnother complication that can cause difficulties for digital learning is the development of various sets of “guidelines” meant to increase certainty in the application of the fair use doctrine. Both at the time of the 1976 Copyright Act and later, educators and rightsholders have intermittently attempted to negotiate mutually-agreeable guidelines.
Guidelines hammered out at the time of the 1976 Act were widely criticized by educational users and organizations as tilted in favor of rightsholders. The Guidelines for Classroom Copying, for example, set numerical limits on the amount and frequency of photocopying by particular educators and require a degree of “spontaneity” that critics consider unrealistic. The resulting rules shrink the scope of fair use and greatly limit the doctrine’s flexibility.
Notwithstanding such objections, these and other guidelines were integrated into the legislative history of the 1976 Act and some courts have considered them persuasive (though not binding) authority on the contours of fair use. Furthermore, as discussed in section 6.1 below, many educational institutions have voluntarily adopted versions of such guidelines as internal policies, including an estimated 80 percent of American universities.
Subsequent attempts to agree to guidelines for fair use have failed. Most prominently, the Commission on Fair Use (CONFU) met through the mid-1990s, but educators and rightsholders were unable to reach accord on most fundamental issues. In light of this history, commentators such as Kenneth Crews have recommended caution in both the application of existing guidelines and any future attempts to reach consensus between rightsholders and users.
Back to Table of Contents[A more detailed paper from the Digital Learning project analyzing statutory damages as they relate to educational uses of content is here.]
Even where content users have a good-faith belief that their conduct is permitted under exceptions for educational use or fair use, every such use carries at least a small risk of litigation. A successful defense still entails significant legal fees. A report by the American Intellectual Property Law Association estimates that the average cost to defend a copyright case is just under one million dollars. While some education-related cases surely would require less than this average amount, this is an especially expensive type of litigation across the board.
Should the educational user lose the case, damages may be steep, particularly because of a special feature in copyright law that provides for statutory damages. These are damage awards, within ranges set by the copyright statute, that are available to owners of federally registered copyrights in place of actual provable damages.
Statutory damages, like actual damages, aim to reduce incentives to violate copyright law, making the expected cost of infringing action no less than the expected cost of obtaining authorization. However, statutory damages often explicitly and purposefully go much higher than actual dama
