I looked forward to the opportunity to review Copyright Law and the Distance Education Classroom by Tomas Lipinski, as I benefited from his previous writings and coauthoring. I followed the legislative history from 2001 until the TEACH Act bill was signed into law in 2002, and was anxious to read Lipinski’s discussion and explanation of the current law.
From a compliance and legal perspective, Copyright Law and the Distance Education Classroom offers an in-depth understanding of the TEACH Act, now part of the U.S. Copyright law, Title 17, United States Code, revising the previous Section 110 (2). “On November 2nd 2002, the ‘Technology, Education and Copyright Harmonization Act’ (the TEACH Act), part of the larger Justice Reauthorization legislation (H.R. 2215), was signed into law by President Bush. 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.” (Crews, 2002)
As the distance education librarian for an online university, and a reference and online services librarian for a large academic library, copyright law and libraries is a growing interest for me. As a virtual librarian I provide all library services to the university: reference, interlibrary loan, e-reserves, and instruction. I am also a resource to faculty, university administration and students for copyright questions related and unrelated to the library. Serving as this resource is a natural progression and is becoming the norm in many universities. As Lipinski says, “Libraries and librarian, whether by default or design, have been in the thick of copyright and licensing issues in recent years. The central administrations of many institutions may be unprepared for the level of copyright and license expertise the TEACH environment demands” (Lipinski, 2003). Though librarians can not offer black and white answers to current copyright issues, they can share their knowledge.
The book offers a comprehensive explanation of the new act, adding to information given in the burgeoning number of copyright-related workshops, presentations, and articles on this popular subject. As librarians, it is now a necessity to have a sufficient understanding and realistic philosophy in the area of the U.S. Copyright Law, Title 17. In the past, Fair Use Exemption (Section 107) knowledge sufficed. In 2002, the TEACH Act (Section 110) also became an important part of the copyright puzzle that Lipinski explains.
Lipinski is codirector and associate professor at the Center for Information Policy Research at the School of Information Studies, University of Wisconsin-Milwaukee. He has a JD, LLM., PhD and MLIS and has published, presented, and lectured extensively on information law and policy, including copyright issues, privacy, and First Amendment and library issues. He has worked in the private, public, and nonprofit sectors. With such expertise, he covers the topic of copyright and distance education from a lawyer’s as well as an educator’s perspective.
It is imperative as educators enter the copyright arena that they gather their knowledge and support from legal advisors who are experienced in education and library issues. They can then be fully aware of choices in the new “distance classroom” and not limit themselves or become fearful of fulfilling their educator role. It is a relevant time to learn the purposes and benefits of the original and existing copyright law as we watch changes in the law affected by Internet technology, publishers, and economics. The more knowledge educators have, the more voice they have in the changes.
The audience for this book includes distance educators from kindergarten through higher education. It is relevant to those with either novice or intermediate copyright law experience, though is geared towards the more experienced. Lipinski suggests that novices use his selected bibliography before beginning the book. I also suggest locating a copy of the old U.S. Copyright Law, Title 17, Section 110 to compare it to the new Section 110 (Appendix C). Also helpful as background and overview of the TEACH Act is the section on the ALA Web site written by Kenneth Crews, professor of law, and director of the Copyright Management Center Indiana University School of Law-Indianapolis (Crews, 2002).
Preparatory Material
Crew’s good summary of copyright offers a perspective for the book and this review. Essentially, much of the material used by educators is protected by copyright law. This includes most writings, images, artworks, videotapes, musical works, sound recordings, motion pictures, and computer programs. Copyrights today usually last through the life of the author plus 70 years. Some works are in the public domain, such as government documents, and do not have copyright protection. Copyright owners are given the right to make copies and rights to make public performances and public displays of the works (Section 106). Consequently, educators frequently incur possible violations of owners’ rights whenever they copy materials as handouts, upload works to Web sites, display slides or images, or perform music or videos. Up until now, dealing primarily with face-to-face instruction, “fair use” and Section 110(1) have been interpreted for distance education discussion. Distance education with transmissions through the Web have led to the TEACH Act revisions (Crews, 2002). Laura Gasaway (2002), in “The TEACH Act (Copyright Corner),” gives a condensed two-page overview of the act for those who prefer a short summary.
With sufficient background, the reader will then have the basic understanding to benefit from the depth of this book—from the Foreword, Part I: Understanding the Limitations on Exclusive rights for Educators, Part II: Understanding the New TEACH Distance Education Law—to Part III: Completing the TEACH Puzzle. In this review, I include in-depth coverage to some of the sections to enable the reader to gain an understanding of the content of the TEACH Act and to learn how it influences teachers, students and administrators. I emphasize those particular areas that will be extremely practical and useful for future reference.
Lipinski gives a detailed discussion of his emphasis in the Foreword. He notes that “Technology and copyright law are in a constant tug-of-war, between reality and ideology, between applying existing legal concepts to emerging technology and designing a legal infrastructure with foresight for change” (p. 7 9). He says the overall goal of TEACH is “to offer a copyright law more in keeping with the realities of modern distance education and cure one of the major deficiencies in the pre-TEACH law. The 1976 view of distance education envisioned a distance education teaching and learning environment where students received instruction gathered together in the same physical class space, but at a location remote to the instructor” (p. 79).
He also discusses the dearth of case law on these new distance education provisions, since the law is new. Instead, detailed legislative history in conference reports and conference committee reports form the basis of his text. He reminds us that there is also little discussion in legislative history for the creation of e-reserves and how it is mainly supposition in that area as well. Without case law, there are only the words of the statute, legislative history, and “qualified trends.” Regarding the latter, Lipinski feels these cases take on more significance than they otherwise might. “Though a case or two may represent a trend of a region, it does not represent “the law” of the entire country, as a U.S. Supreme Court case does” (p. x).
Part I: Understanding the Exclusive Rights for Educators
Once Lipinski clearly states the goal of TEACH and the direction he will use to explain it, he moves to Part I and the first chapter to give further background of the Performance and Display Rights in the Live Classroom and the Remote Classroom and the Need for Reform. He reminds the educator in the distance education classroom to first determine if the material is protected by copyright (Section 106) and if the educator impinges on these rights. Then, the educator should determine if there are any limitations (general or specific) on these rights that apply to the intended use. The general limitation is Section 107 (“fair use”). The specific limitations are Section 110 (1) designed for face-to-face instruction and Section 110 (2) (part of TEACH Act) designed for distance education and the major focus of this book. Also included as a supporting provision is Section 112 (f) (Ephemeral Recording) which offers a limitation on the reproduction rights of copyright owners (part of the TEACH Act). “The trick, so to speak, is to understand which exclusive right is impacted by an intended use and whether a specific limitation(s) such as Section 110 or Section 112 applies” (p. 5). This indicates, he clarifies, if a use is permissible or instead suggests when the general limitation of Section 107 (Fair Use) is necessary. He reviews Section 110 (1) and (2) with clear explanations through charts and tables to compare and contrast the old and new laws, with a brief look at how educators used to violate copyright law in distance education settings. With the old law there was no limitation on portions of copyrighted work, audiovisual works were excluded, the display or performance could never be for recreation or entertainment, and it included only analog (not digital) transmissions.
Within Part I, Lipinski also includes a section on Ownership, noting that universities usually have ownership, many having a policy defining when output would be work for hire and when it would belong to the faculty. Many examples are provided for sufficient understanding.
Part II: Understanding the New Teach Distance Education Law
Part II contains the emphasis of the book, the TEACH Act, with an extensive discussion of the Scope of the Privilege for Educators— Excluded Materials. The author examines each clause of the revised Section 110(2), using legislative history for clarification. He aptly suggests following the new law from the Appendix line by line as he explains each of the exceptions which grant users the right to make certain uses of copyrighted material. Each of the activities described in Section 110(2) are exceptions to the control owners exercise over their works. He calls it a “legal privilege.” He explains why some materials are excluded from the privileged uses, like works produced for the “market” or unlawfully made copies. E-reserves, course packs, textbooks and digital library materials are not included. Regarding performances under the new law, he clarifies that while there is still no limitation to nondramatic performances, other performance material amount is now limited to a reasonable and limited portion. Regarding displays, he explains how they are now limited to an amount comparable to that which is typically displayed in a live classroom. Through examples, he explains how performances and displays must be under supervision of an instructor, offered as a regular part of systematic mediated instructional activity (MIA), part of a class session, and not be unrelated entertainment. The audience must be enrolled students, including virtual students who preferably access with a password. He finishes this section with a discussion of the New Responsibilities of the Institution. He notes that the most significant shift is a signal from Congress that the instructor and support, the computing staff and the institution must now take an active part in copyright compliance strategies. The policies are extensive. For the convenience of educators, in Appendix B, he includes a Model Distance Education Copyright Policy authorizing use to purchasers of the book. Lipinski’s useful summary chapter of Part II, “Section 110(2) Requirements in a Nutshell,” clarifies any disconnects the reader may have.
Part III: Completing the Teach Puzzle
The first section of Part III, discusses The Ephemeral Recording Privilege in Distance Education: the Old and New. This involves the initial copying of material to be used later for the classroom. Lipinski explains how this recording right exists only when the use of the work is authorized in Section 110(2). The recording is linked or limited to the material authorized in Section 110(2).
The second section in Part III discusses Fair Use in the Distance Education Classroom. Fair Use remains an important exemption within the Copyright Law. Lipinski speaks of Fair Use as the general limitation on the exclusive rights of copyright owners and explains how “fair use” can always apply to a use of copyrighted material, even when it appears that a more “specific” statute section also applies. He adds that what is not covered in a specific statute may be covered in Fair Use, licenses being an example. Lipinski reminds us to review license “use” clauses to make sure that the full array of distance education use rights is included, such as performances and displays in the virtual classroom, as well as digital library and e-reserve use and distributions to library patrons (p. 155). We cannot be reminded too often on that point. He emphasizes how Congress purposefully made the language vague for the four Fair Use factors (purpose and character, nature of work, the amount and substantiality of the portion used in relation to the work as a whole and the effect of the use upon the potential market for or value of the work), without giving any one more weight. As with Section 110, there is little case law on point, i.e. not a library e-reserve or distance education classroom case. Therefore, educators must borrow from existing scant library and classroom cases or recent digital fair use cases to look at trends (p. 157). Within the chapter, he does discuss the most recent cases of A&M Records v. Napster, Campbell v. Acuff-Rose Music, Inc., Higgins v. Detroit Educational Television Foundation, Los Angeles Times v. Free Republic, American Geophysical Union v. Texaco, Princeton University Press v. Michigan Document Services, and Basic Books, Inc v. Kinko’s Graphics Corp. He notes that an ironic result is that fair use, with all of its uncertainty and flexibility, becomes of growing importance compared to the new statutory language with the TEACH Act which is tightly limited. Fair use continues to apply to the scanning, uploading and transmission of copyrighted materials for distance education, even after enactment of the TEACH Act and will be the subject of further studies.
Appendices
Following the core of the book, Appendix A presents a TEACH Q & A Compliance Audit, one of the most practical sections. It is separated into questions and answers concerning limitations on materials, instructional requirements, compliance requirements and digital transmission. I found this to be an extremely useful method of examining questionable material to decide whether it is part of the limitations protected under Section 110.
Appendix B provides a Model Distance Education Copyright Policy. This policy is now part of the responsibility of the institution and here is one for anyone to use. It eliminates the need for a committee and many meetings and many drafts.
Appendix C gives the Copyright Statute Sections (Selected), including:
Section 101: Definitions
Section 106: Exclusive rights in copyrighted works
Section 107: Limitations on exclusive rights: Fair Use
Section 110 (1) and (2): Limitations on exclusive rights: Exemption of certain performances and displays
Section 112 (b) and (f): Limitations on exclusive rights: Ephemeral recordings
Section 201(a), (b), and (d): Ownership of copyright
Section 204: Execution of transfers of copyright ownership
Following Appendix C, the book contains a selected bibliography. Separated by topic, the reader can choose areas of interest: general copyright, fair use, ownership, Pre-TEACH distance education, post-TEACH distance education, and licensing. A case index follows the bibliography, listing all the cases mentioned throughout the book.
Conclusion
This book should be an addition to the library of any distance educator as well as distance librarian, as librarians continue to be resources for all educators. It offers a thorough understanding of limitations on exclusive rights (performances, displays, ephemeral recordings as well as fair use) in the classroom and the appropriateness of each. The book can be appreciated on two levels. First, it can be helpful from a compliance standpoint, on a very practical level, with all the useful appendices, especially the Q&A and the model policy. Second, from the legal standpoint, it gives an indepth, comprehensive, well-researched, and thoroughly referenced study of an act that appears convoluted to many. The author accomplishes this with the above-mentioned methods of explaining the existing laws before explaining the new TEACH Act, going through important sections phrase by phrase to explain how decisions are made in copyright law, using tables and charts to compare and contrast the old versus the new law, comparing face-to-face with online, and giving relevant examples of real situations. Most important, Lipinski explains the reasons for additional changes as well as gives a projection for changes in the future. The book will answer some specific questions educators have regarding their performance and display rights, but mostly, and more important, it thoughtfully helps them navigate the unsettled nature of the copyright law.
