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Education Bill Tests Copyright Interests
by Drew Clark
In one of the first signs that the power of copyright interests may be waning on Capitol Hill, the Senate Judiciary Committee is preparing to pass legislation that would permit the posting of copyrighted material on the Internet -- without additional payment -- by educational institutions engaged in face-to-face or long-distance instruction.
Although educators who advocate the change see it merely as an update to an existing exception within copyright law, copyright interests have fought bill -- introduced by committee Chairman Orrin Hatch, R-Utah, and ranking Democrat Patrick Leahy, Vt. -- on the grounds that it could open a new front for digital piracy.
But faced with Hatch and Leahy's determination to push the bill, S. 487, members of the copyright community -- broadly defined to include the recording industry, software manufacturers, book publishers and motion-picture studios -- spent the past week-and-a-half negotiating for changes under the supervision of the Library of Congress' Copyright Office.
Last Friday, the two sides reached an agreement slightly modifying some elements of the bill, said negotiators and a committee staffer. They have been charged to "sell" the agreement to their respective constituencies and report back to the committee, which plans to vote on the bill Thursday.
Potential Defeat For Copyright Interests
If passed, S. 487 would mark a rare defeat for copyright interests, who have long had a powerful voice on Capitol Hill. Although the Recording Industry Association of America (RIAA) has taken a black eye in the public-relations battle against Napster and other music Web sites, even Hatch -- Napster's most avid defender in Congress -- has not proposed anything that would change the dynamics of the RIAA-member lawsuit against the wildly popular Web site, which an appeals court said had engaged in copyright infringement.
Other changes in copyright law have had little traction because of opposition by key members of the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property.
The key supporters of S. 487 are the American Association of Universities, the Association of Research Libraries and the American Library Association (ALA), and they say the nascent market for distance learning -- particularly classes offered online -- has been stymied by their inability to post course materials on the Internet.
Face-to-face educational settings have long been exempted from restrictions on copyright law, and in 1976, that exception also was applied to broadcast technology. Such an exception permitted colleges with students in remote areas to use copyrighted material on early-morning television, for example.
Updating Copyright Law For The Internet Age
"From the point of view of educators, you want to be able to have as much educational material as possible fall under an exemption so that a faculty member can use them for performances and display" without damaging the original market for selling the materials, said John Vaughn, executive vice president of the Association of American Universities. "Our basic objective is to change the law and allow us to deliver remotely the same educational content that you are allowed to do in the classroom. That is a clearly justifiable educational objective."
As originally introduced, S. 487 would have exempted nonprofit educational institutions from liability if they used copyrighted works as "an integral part of a class session," and so long as they are only available to the officially enrolled students. Institutions also must "not intentionally interfere with technological measures used by the copyright owner to protect the work," said a portion of the bill that has concerned some educators.
"Our concern is that this then just adds a double whammy," said Miriam Nisbit, legislative council for the ALA, referring to a provision of the 1998 Digital Millennium Copyright Act that banned attempts to circumvent technological controls like encryption -- even in situations where the user has a legal right to copy the material. "We are already having to deal with a prohibition on circumvention, and here is another one being written."
Digital Opportunity or 'Heist'?
But the copyright community has had far more problems with the bill. Allan Adler, the vice president for legal affairs for the American Association of Publishers, fears an erosion of the sales of physical books and e-books. He has called the bill the "Copyright Heist Act."
Other groups that opposed the bill but that participated in negotiations over it included the Motion Picture Association of America, RIAA and the Business Software Alliance.
Speaking of the legislation as a whole, Adler said, "We didn't think it was warranted, but we had to [be] pragmatic when it was supported by the chairman and ranking member of the committee and in light of the lobbying being done by the educational institutions." He said Hatch intends to attach S. 487 to the broader education bill, S. 1, in an attempt to further insulate it from copyright industry opposition.
Their key objection is the breadth of the exemption. As originally written, it would have exempted "instructional uses," a phrase that the copyright industry felt permitted too many uses of copyrighted material that would undercut their market.
Testifying last Wednesday before the House Judiciary subcommittee on intellectual property, Register of Copyrights Mary Beth Peters said one compromise being discussed was to narrow the phrase to "instructional uses on the Internet." In the end, Adler said negotiators agreed to "mediated instructional activities."
Copyright groups also were concerned about language in the bill that would have exempted educational institutions for liability for the use of ephemeral recording, or the incidental recordings generated in computer memory as a byproduct of listening to copyrighted audio files. That issue currently is a major copyright snag between recording labels and webcasters.
But Adler said he believed changes made to the bill would permit copyright holders to stop students who used their technical know-how to locate and redistribute such ephemeral copies.
Possible Expansion To For-Profit Institutions
Adler said he also was concerned about how the language of the bill could be affected by a forthcoming Copyright Office study on whether existing "fair use" rights should be expanded because of the digital environment. Such a study was due this month, but Peters said it had been delayed because of the urgent call to help broker the agreement on distance education.
One issue the parties, including the Copyright Office, did not consider in their negotiations was whether the bill should be broadened to permit for-profit institutions -- including new online universities -- to engage in distance education.
"We are aware that some groups, like the University of Phoenix, want the bill expanded to include them," Peters said in her House subcommittee appearance last week. Although such concern fans the flames of copyright interests that fear further expansion, a Senate Judiciary Committee staffer said Hatch was open to such an expansion.
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