Guidelines for distance learning and interlibrary loan: Doomed and more doomed

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  • Guidelines for Distance Learning and Interlibrary Loan:Doomed and More Doomed

    Laura N. GasawaySchool of Law, University of North Carolina at Chapel Hill, Chapel Hill, NC 27599.

    The Conference on Fair Use (CONFU) was a useful forumfor discussions among librarians, educators, and userson one side and the content providers on the other. Twoparticularly thorny issues were distance learning andinterlibrary loan. Although the end result was the same ineach areano widely accepted guidelinesthe processand intermediate results were very different. Distance-learning guidelines were produced after considerablenegotiation, but they did not garner sufficient support tobe accepted as CONFU guidelines. Interlibrary loanproved even more difficult, and no agreements werereached except that it was too early to develop guide-lines on digital interlibrary loan. Thus, no interlibrary-loan guidelines were drafted as a part of the CONFUprocess.

    Distance Learning

    Distance learning is an increasingly important instruc-tional method for colleges and universities. At some newlycreated schools all courses toward a degree are offered overthe Internet or through other means of distribution (see, e.g.,California Virtual University, learning, sometimes referred to as distributedlearning, is defined most simply as instruction that occurswhen the instructor and students are not located in the sameplace. Various technologies may be employed to offer thatinstruction including passive video, audio or video confer-encing, and Internet delivery. Courses may be offered aslive, interactive courses, or as courses in which the studentconfronts the material at his or her own pace without theintervention of an instructor at regular class times. Distancelearning presented a particular challenge to the CONFUWorking Group because the existing statute (Copyright Act

    of 1976, 1999, 110(2)) contains many limitations on theworks that may be used and where transmission may occur.Often the line drawn by the statute defies logic and bearslittle relation to the needs of education (Crews, 1997, p.378). Further, copyright law often is an impediment todistance learning, and no one is sure to what extent fair usewill be interpreted to permit the use of such protected worksfor distributed learning (Gasaway, 1998).

    One of the distinctive characteristics of the distance-learning guidelines (CONFU, 1998, Appendix I) is that theyare based on a specific statute (Copyright Act of 1976, 1999,110(2)), known sometimes as Instructional Broadcast-ing, but that covers distance learning in a very narrowfashion. Section 110(1) is called the Classroom Exemp-tion (Copyright Act of 1976). It is limited to nonprofiteducational institutions, and it allows performance and dis-play of all works. The only requirements are that one isinvolved in face-to-face teaching activity in a classroom,and in the case of an audiovisual work, the copy must havebeen lawfully made. Consequently, for performances anddisplays in a classroom as part of face-to-face teaching, thestatute is very liberal. Teachers may show copyrightedvideotapes, students may act out a play, or the class maysing a copyrighted song.

    Regarding distance learning, however, the statute ismuch narrower. Section 110(2), which is the instructionalbroadcasting part of the statute, allows only performances ofnondramatic literary or musical works, or the display of anywork in the course of transmission (Copyright Act of 1976,1999). The scope of allowable materials is tightly limited,and all audiovisual works are barred under this statute. Ituses the term transmission, because in 1976 all anyonecould foresee was television broadcasting as some kind ofdistance learning. Section 110(2) goes on to allow that it isnot an infringement of copyright if:

    (A) the performance or display is a regular part of thesystematic instructional activities of a governmentalbody or a nonprofit educational institution; and

    1999 John Wiley & Sons, Inc. Permission is hereby granted by thePublisher for this material only to reproduce, distribute, display, andtransmit the articles in this Perspectives section for nonprofit purposes,provided that copies are distributed for noncommercial purposes only andnot for resale or for systematic redistribution, and the author, source, andcopyright notice are included on each copy. This permission is in additionto rights granted under Sections 107, 108, and other provisions of the U.S.Copyright Act.

    JOURNAL OF THE AMERICAN SOCIETY FOR INFORMATION SCIENCE. 50(14):13371341, 1999 CCC 0002-8231/99/141337-05

  • (B) the performance or display is directly related and ofmaterial assistance to the teaching content of the trans-mission; and

    (C) the transmission is made primarily for:(i) reception in classrooms or similar places nor-

    mally devoted to instruction, or(ii) reception by persons to whom the transmission is

    directed because their disabilities or other specialcircumstances prevent their attendance in class-rooms or similar places normally devoted to in-struction, or

    (iii) reception by officers or employees of govern-mental bodies as a part of their official duties oremployment . . . (Copyright Act of 1976).

    Although it may sound as if there is wide latitude inSection 110(2), the statute poses several significant prob-lems when it comes to distance learning.

    First, the statute is counterintuitive to teachers. Why canthey in face-to-face teaching do something that they cannotdo in distance learning? This dilemma is especially acutewhen it is exactly the same course taught to exactly thesame type of students, sometimes even to a reduced numberof students. Teachers simply do not understand why itshould be different. They say, Do you really mean I haveto use different content because I cannot use a videotape? Ican use it face-to-face, but I cant use it in distance learn-ing?

    Second, some content owners were fixated on permittingonly portions of their works to be used. As we worked onthese guidelines, content providers stated over and overagain that they feared theft of their intellectual propertybecause students would download entire motion pictures. Iremember arguing with the counsel from Viacom, whorepeated over and over again, We do not want distance-learning students to make an entire copy of Forrest Gumpfrom a distance-learning course. I asked, Why wouldanyone do that when the movie has been on HBO, and youcould duplicate it there if you wanted a copy? Further, it isdifficult for me to think about what kind of a distance-learning course would show Forrest Gump in its entirety.Showing clips seems much more likely to me. We keptcoming back and saying to the movie people, What we arereally talking about, more than major motion pictures, arethe 20-minute videotapes on your digestive system. Butclips of those tapes will not workone needs to see theentire work. Which part of the digestive system should beomitted? If the movie is long, teachers will use only a clip.If it is an educational videotape, the entire tape is likelyused.

    Third, content providers feared that their material wouldbe uploaded to thousands of recipients with just a fewkeystrokes, and therefore, everybody in the world wouldhave access to this work that was disseminated using dis-tance learning. Thus, preventing downstream and transmis-sion copying was a serious concern.

    Accordingly, CONFU proposed distance-learning guide-lines. They are definitely complicated, and they are restric-

    tive, but this is because Section 110(2) is their foundation,and that statute is highly restrictive. Our approach to theguidelines was to isolate different types of distance learning,not because we thought this was the ideal way to do it, butbecause we had a great deal of difficulty understandingdistance learning and what is being offered today versuswhat would be offered in the future. One person in the groupwould be talking about videoconferencing, while the nextperson was talking about computer network delivery. Wefinally said, The only way we can approach this is toseparate the types of distance learning and work on themone at a time. We ultimately identified three types ofdistance learning. This was not easy, and each one was ahard-fought battle. The three types are: (1) live interactive,such as videoconferencing; (2) taping a live teaching ses-sion for later transmission, either with or without studentspresent; and (3) live interactive computer network delivery.The interactive piece was very critical to the copyrightholders. What we did not agree on was asynchronous com-puter network delivery. This issue was put to the side forlater consideration for several reasons. Publishers statedrepeatedly that they believe that asynchronous computernetwork delivery, such as signing onto the Web to take acourse with materials delivered at the students request, isthe equivalent of an old correspondence course. In otherwords, all of the materials for the course are provided whenyou sign on. Therefore, it is the equivalent of publishing thismaterial.

    Distance educators were willing to exclude asynchro-nous delivery at that time, because very little of it wasactually taking place. Colleges and universities were exper-imenting, but we could not at the time identify as many asa hundred courses across the country that used asynchro-nous delivery. The guidelines simply resolve that we need toreconsider it in three to five years, when more asynchronousdelivery would be occurring and we could identify possiblemodels. That time is swiftly approaching.

    Basically, the proposed guidelines (CONFU, 1998, Ap-pendix I) extend the face-to-face exemption to distancelearning. Our underlying assumption was that we needed totake the broad face-to-face exemption and make it availableto distance learning. Naturally, from the copyright holderspoint of view, we could not make this transfer wholesale.Restrictions were necessary. All copyrighted works couldbe performed in their entirety. The type of works was notrestricted despite the Section 110(2) restriction of works,and this was a big step. The guidelines permit performancesof video, movies, multimedia, anythingno restriction onthe type of works. The statute, by contrast, limits perfor-mances in distance learning to nondramatic musical andliterary works and would preclude any use of audiovisualworks.

    The guidelines followed the statute in some respects. Theuse must still be part of systematic instruction. Althoughsome of the legislative history of the Copyright Act refers tosystematic instruction for Section 110(1), only Section110(2) actually requires it. The performance of entire works


  • definitely expands Section 110(2). In a compromise, theguidelines, in effect, concluded, Lets let the face-to-faceteaching exemption apply for the first time the course istaught by the instructor. That allows an instructor to testwhether using this videotape, or whatever, works the firsttime, and thereafter permission must be sought. This isfairly similar to the photocopy guidelines from 1976 (H.R.Rep. No. 1476, 1976), which refer to one-semester use. Mypreference would have been for us to use anything we wantto use when we want to use it, but the guidelines representnegotiation and compromise.

    Transmission under the guidelines is also somewhatrestricted. The guidelines allow a one-time transmission bythe faculty member without permission. The reception alsomust be limited to enrolled students. In other words, SunriseSemester (remember that old program?) would not qualify,because it is not restricted to enrolled students. The trans-mission also has to occur on a secure system that does notpermit downloading by students or at least downloading thatportion of a class containing the performance of an entirecopyrighted work. The school could still allow the course tobe copied, but it must excise performances of the copy-righted work. The receiving institution is permitted to makea copy of the entire course and retain that copy for fifteendays for student use. The institution may tape the teacherand retain the tape forever, but must cut out the performanceof Forrest Gump. An alternative would be to buy a copy ofForrest Gump and have it available for students to view.

    In conclusion, the momentous growth of distance learn-ing will certainly not be stopped by copyright concerns.Some institutions right now are obtaining permission foreach copyrighted work that they use in distance learning.These guidelines allow them to ease that effort and givethem the ability, at least on a one-time basis, to use an entirecopyrighted work. This is the safe harbor. Other institutionsare engaged in distance learning, and not obtaining permis-sion for any materials. The guidelines advise those users ofthe risks. We know we are going to have to find solutions.The CONFU guidelines are only a first step in this process,especially because what we believe will ultimately be themajor form of distance learningasynchronous deliv-eryis not covered by the guidelines.

    Ultimately, CONFU did not receive enough endorse-ments for the distance-learning guidelines to include them.At the May 1997 meeting of CONFU, Carol Risher of theAssociation of American Publishers, and other representa-tives of content providers indicated that they were willing torefrain from lawsuits against schools that followed theguidelines. Would the outcome have been different if thishad been made known earlier? No one will ever know.

    Interlibrary Loan

    Interlibrary loan is a very old and respected practice inlibraries around the world. It is defined as the lending of anoriginal copy of material, or the reproduction of material, atthe request of a patron at a library that does not own the

    requested title (Ensign, 1997, p. 155). By the time the firstissue of Library Journal appeared in 1876, interlibrary loanwas already a topic of discussion (Green, 1876, pp. 1516).The first American Library Association Interlibrary LoanCode was adopted in 1919 (Gilmer, 1994, p. 24), and thepractice continues to develop. Technology certainly hasexpanded interlibrary loan; the development of the photo-copier has forever changed the way library patrons usematerials (McClure, 1997, p. 174). Newer technologies tocreate and send digital copies of works to satisfy interlibraryloan requests promise another significant change in the wayusers obtain and use the materials they request.

    When we commenced the CONFU negotiations, those ofus who work in libraries thought that the one area in whichwe would find easy agreement, although not without somenegotiation, was interlibrary loan (ILL). We had two rea-sons for optimism: there are existing guidelines that covercopies of print materials for ILL (Commission on NewTechnological Uses of Copyrighted Works, 1979, pp. 5455); and ILL was identified as a critical issue, albeit some-what obliquely, in the Nation...