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The future of “distance education” received a major boost with passage of the Technology Education and Copyright Harmonization Act in November 2002. But pro-market pressures may yet disturb this regulatory compromise between educators and copyright holders. TEACH updates Subsection 110(2) of the Copyright Act of 1976, which exempted from the exclusive rights of “public performance” and “public display” otherwise granted to copyright owners the transmission of certain copyrighted materials by open- and closed-circuit TV broadcasts into classrooms. The idea then was to ensure that much of the copyrighted material that could be presented directly in the classroom could also be presented indirectly from another location. However, by the 1990s, the growth of digital technology and the Internet had made the 1976 measure nearly useless. Education was embracing a technology that, unlike broadcast TV, inherently produces copies of copyrighted works and that makes it feasible to reach students outside the constraints of the physical classroom at any time of day. Worried that infringement claims would chill distance learning, educators pressed Congress for relief. Copyright holders resisted any legislative change, arguing that evolving licensing methods should satisfy most concerns. In the end, Congress was persuaded by the educators. TEACHING BITS Under TEACH, nonprofit educational institutions are no longer restricted to analog technology. They may now use digital formats to transmit supplemental educational materials to students beyond the classroom without obtaining permission from the copyright holder. In exchange for this dispensation, educators agreed to new safeguards to prevent unauthorized duplication and retransmission. While they were willing to accommodate the legitimate concerns of copyright holders, educators had strongly opposed being required to license content for purposes of digital transmission. Their objections were not only the complication of tracking down copyright owners and negotiating terms, or the inevitable increase in economic costs, but also the dynamics of securing access. As a representative of the Association of American Universities wrote in comments to the Copyright Office, “The power to license is … ultimately, the power to deny access to information, too great a shroud to place over distance education.” Congress appears to have understood. In identical language, House and Senate committees reported that the original intent of Subsection 110(2) was “a policy determination that certain performances and displays of copyrighted works in connection with systematic instruction using the then-known forms of distance education should be permitted without a need to obtain a license or rely on fair use. … Without an amendment to accommodate these new technologies the policy behind the 1976 Act would be increasingly diminished.” LICENSES TO KILL Despite Congress’ calibration of the competing interests, pressure to impose licensing persists not only because more and more digital content is available only under license, but also because the pro-licensing view is championed by none other than the Copyright Office. The Copyright Office’s preference is clearly stated in a 1999 report on the major issues ultimately addressed in TEACH. The report reiterated the office’s fundamental support for letting markets develop with minimal regulation. Because “effective licensing and technological measures may be on the horizon,” it recommended “revisiting the licensing issue in a relatively short period of time.” If substantial problems still existed, the office suggested that Congress apply “legislative incentives for the development of more effective and acceptable licensing mechanisms.” Unfortunately, this position misses an important pedagogical point: Trusting to a market approach where owners can restrict access, thus forcing educators to rely upon the uncertainties of the fair use doctrine, risks the ultimate objective of distance education — namely, to provide off-campus students with as rich a learning experience as that of on-campus students. If the Copyright Office continues to add its weight to the pro-licensing side, the congressional gauge may yet swing away from giving teachers full access to supplemental materials for digital distance learning. Educators must still make very clear the great damage that a licensing requirement could do to the quality of digital instruction. Barbara I. Berschler is a solo attorney based in Rockville, Md., practicing in the general business area. She is studying for her LL.M. at the American University Washington College of Law, concentrating in copyright law.

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