Promotion of Distance Education Through Digital Technologies

Federal RegisterDec 23, 1998

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LIBRARY OF CONGRESS

[Docket No. 98-12A]

Promotion of Distance Education Through Digital Technologies

AGENCY: Copyright Office, Library of Congress.

ACTION: Request for comments and notice of public hearing.

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SUMMARY: The Copyright Office is preparing recommendations for

Congress, in accordance with Section 403 of the Digital Millennium

technologies. This notice requests written comments from all interested

parties, including representatives of copyright owners, nonprofit

educational institutions, and nonprofit libraries and archives, in

order to elicit views and information to assist the Office in its

analysis of the relevant issues preparatory to making its report and

recommendations. This notice also announces the schedule for, and

invites participation in, a series of three public hearings to be held

in Washington, DC, Los Angeles, California and Chicago, Illinois.

DATES: Written comments must be received in the Copyright Office on or

before 5 p.m. E.S.T. on February 5, 1999. Interested parties may submit

written reply comments in direct response to the written comments or

the oral testimony offered at the hearings. Reply comments will become

part of the record if received on or before 5:00 p.m. E.S.T. on

February 24, 1999.

See SUPPLEMENTARY INFORMATION for hearing dates and additional

submission deadlines.

ADDRESSES: All submissions should be addressed to Sayuri Rajapakse,

Attorney-Advisor, Office of Policy and International Affairs. Those

sent by regular mail should sent to the U.S. Copyright Office,

20024. Submissions delivered by hand should be brought to the Office of

Policy and International Affairs, Office of the Register, James Madison

Memorial Building, Room LM-403, 101 Independence Avenue, Southeast,

Washington, D.C. Submissions by telefax should be made to (202) 707-

8366. Submissions by electronic mail should be made to

``[email protected]''; see SUPPLEMENTARY INFORMATION for file formats and

other information about electronic filing.

See SUPPLEMENTARY INFORMATION for hearing addresses.

FOR FURTHER INFORMATION CONTACT: Shira Perlmutter, Associate Register

for Policy and International Affairs, or Sayuri Rajapakse, Attorney-

Advisor, Office of Policy and International Affairs. Telephone: (202)

707-8350. Telefax: (202) 707-8366.

SUPPLEMENTARY INFORMATION:

Written Comments

The Copyright Office will be placing all comments and reply

comments on its Website (http://lcweb.loc.gov/copyright/disted/).

Comments and reply comments should be sent, therefore, in one of the

following formats:

If by regular mail or hand delivery: Send, to the appropriate

address listed above, two copies, each on a 3.5-inch write-protected

diskette, labeled with the name of the person making the submission,

his or her title and organization. The document itself must be in a

single file in either Adobe Portable Document File (PDF) format

(preferred), or in Microsoft Word Version 7.0 or earlier, or in

WordPerfect Version 7 or earlier. The file name must be no longer than

eight characters with a three-character extension.

If by electronic mail: Send to ``[email protected]'' a message

containing the name of the person making the submission, his or her

title, organization, mailing address, telephone number, telefax number

and e-mail address. The message should also identify the document

clearly as either a comment or reply comment. The document itself must

be sent as a MIME attachment, and must be in a single file in either

Adobe Portable Document File (PDF) format (preferred), or in Microsoft

Word Version 7.0 or earlier, or in WordPerfect 7 or earlier. The file

name must be no longer than eight characters with a three-character

extension.

Anyone who is unable to submit a comment in electronic form should

submit ten paper copies by hand or by mail to the appropriate address

listed above.

All written comments should contain the name of the person making

the submission, his or her title, organization, mailing address,

telephone number, telefax number and e-mail address.

Public Hearings

The Copyright Office will hold three public hearings.

The first hearing will be held in Washington, DC, on January 26 and

27, 1999, beginning at 9 a.m. E.S.T. on both days, at the Postal Rate

Commission, third floor Hearing Room, 1333 H St., Northwest,

Washington, DC. This hearing will be preceded, on January 25, 1999 from

2 p.m. to 5 p.m., E.S.T. by a demonstration of distance education

programs using digital technologies in the Automation Orientation

Center, LM G-45, James Madison Building, Library of Congress,

Washington, DC.

The second will be held in Los Angeles on February 10, 1999,

beginning at 9 a.m. P.S.T., at the University of California at Los

Angeles (UCLA), James West Alumni Center Conference Room, 325 Westwood

Plaza, Los Angeles, California.

The third will be held in Chicago on February 12, 1999, beginning

at 9:30 a.m. C.S.T., at the University of Illinois at Chicago, College

of Medicine, Room 423, 1853 West Polk St., Chicago, Illinois.

Anyone desiring to testify at one of the hearings should submit a

written request by hand delivery or telefax which should be received no

later than 5 p.m. E.S.T. on January 12, 1999. All requests to testify

should identify clearly the hearing to which reference is made and the

individual or group desiring to appear. The Copyright Office will

notify all witnesses of the date and expected time of their appearance,

and the maximum time allowed for their testimony.

Anyone desiring to testify at one of the hearings must also submit

a summary of their testimony, so designated. The summary may be

delivered by hand or sent by telefax, electronic mail or regular mail.

It must be received by 5 p.m. E.S.T. at least 10 days prior to the date

of the hearing at which the testimony will be presented. Ten copies of

the summary are required if delivered by hand or sent by regular mail.

Background

On October 28, 1998, H.R. 2281, the Digital Millennium Copyright

Act, was enacted into law (Pub. L. 105-304, 112 Stat. 2860). Section

403 requires that the Copyright Office consult with representatives of

libraries and archives, and thereafter to submit to Congress

recommendations on how to promote distance education through digital

technologies, including interactive digital networks, while maintaining

an appropriate balance between the rights of copyright owners and the

interests of users. Such recommendations may include legislative

changes.

The statute instructs the Register of Copyrights to consider:

(1) The need for an exemption from exclusive rights of copyright

owners for distance education through digital networks;

(2) The categories of works to be included under any distance

education exemption;

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(3) The extent of appropriate quantitative limitations on the

portions of works that may be used under any distance education

exemption;

(4) The parties who should be entitled to the benefits of any

distance education exemption;

(5) The parties who should be designated as eligible recipients of

distance education materials under any distance education exemption;

(6) Whether and what types of technological measures can or should

be employed to safeguard against unauthorized access to, and use or

retention of, copyrighted materials as a condition of eligibility for

any distance education exemption, including, in light of developing

technological capabilities, the exemption set out in section 110(2) of

title 17, United States Code;

(7) The extent to which the availability of licenses for the use of

copyrighted works in distance education through interactive digital

networks should be considered in assessing eligibility for any distance

education exemption; and

(8) Such other issues relating to distance education through

interactive digital networks that the Register considers appropriate.

In accordance with its mandate, on November 16, 1998, the Copyright

Office published a Notice of Request for Information in the Federal

promotion of distance education through digital technologies and of the

issues with which those parties were concerned. 63 FR 63749 (Nov. 16,

1998). Although December 7, 1998 was fixed as the deadline for receipt

of communications from interested parties, due in part to the large

volume of late responses, the Office continued to accept materials for

consideration and inclusion in the public record until December 14,

1998. By that date, 175 responses were received. The Office is in the

process of reviewing all received materials.

Specific Questions

The Office seeks comment on the following specific questions.

Parties need not address all questions, but are encouraged to respond

to those as to which they have particular knowledge or information.

1. Nature of Distance Education

(a) How may distance education be defined? In what sense does it

differ from traditional face-to-face education? To what extent does it

utilize digital technologies? In what sense does it differ from the

general use of electronic communications in educational settings?

(b) What is the nature of the distance education programs using

digital technologies that are currently available, or in development?

Do they involve students using the Internet as a resource,

communicating with teachers by e-mail, communicating with class members

in chat rooms, or participating in classes conducted by

teleconferencing? To what extent are they interactive? To what extent

are they asynchronous? To what extent are copies made or kept, and by

whom?

are they made available? What restrictions are imposed on their access,

use, modification or retention?

(d) How are such programs funded? What proportion of the entities

who develop or offer them are nonprofit? What types of fees are charged

to students? Are the programs intended to, and do they, generate a

profit?

(e) What proportion of such programs are accredited? By whom are

they accredited?

(f) Who are the recipients of such programs? What communities are

served? Are students primarily located in any particular geographic

communities (e.g., urban or rural)? Are there particular criteria for

enrolling in or otherwise gaining access to the programs? How many

students participate in a program at a time? Are the programs made

available to students in other countries?

(g) At what level are such programs offered? Are they offered at

the level of elementary school, high school, college, graduate school,

or adult education? Are courses offered for credit, and as part of

degree programs?

(h) To what extent is new content created for such programs, and by

whom? To what extent is pre-existing content used, and of what type

(e.g., motion pictures, music, sound recordings, computer programs,

books)? How is it used, and in what amounts?

(i) Are there institutional policies in place with regard to the

creation and use of such programs? Is any instruction provided to

students or teachers in connection with such programs regarding

2. Role of Licensing

(a) Where pre-existing content is used in distance education

programs using digital technologies, to what extent do the persons or

entities involved obtain permission for the use of that content? Is

this accomplished by direct contact with the copyright owner, or in

some other way? To what extent do the parties enter into negotiated

licenses, or use form contracts?

(b) To what extent do the persons or entities providing such

programs rely on defenses available under the copyright law in choosing

not to obtain a license (e.g., fair use, section 110(2), or the

doctrine of implied license)? To what extent do they use public domain

material, and if so, of what type?

what reason(s)? Are the difficulties different in nature or degree than

for other types of uses, including traditional education and including

multimedia uses generally?

(d) To what extent can technology be used now or in the future to

ameliorate any difficulties in licensing? Can it serve to facilitate

the identification of rights holders, the clearance of rights and the

process of obtaining licenses, including price differentiation based on

such attributes as the user's purpose, need, institutional affiliation,

or ability to pay?

(e) What other options exist for making the permissions process

easier? How likely is the development of collective or blanket

licensing, or ``one-stop shops,'' and within what time frame?

3. Use of Technology

(a) What technologies are used to prepare and disseminate digital

distance education programs? Are these technologies specifically

developed or produced for the distance education programs, or are they

generally commercially available?

(b) What technologies are available to protect the security of

digital distance education programs? In particular, are there

technologies in use or under development that can prevent the

unauthorized reception, use, or retention of copyrighted materials

incorporated into such programs, or that can authenticate materials or

protect their integrity? What is the time frame for the availability of

such technologies? What parties or entities are developing them, and

what type of costs are involved in implementing them?

4. Application of Copyright Law to Distance Education

(a) Is existing law adequate in addressing current and anticipated

forms of distance education using digital technology? If not, in what

ways is it inadequate? Are there reasons why digital transmissions

should be treated differently from education through broadcasting or

closed circuit technologies, or in a traditional classroom?

(b) Is it preferable to deal with the copyright issues raised by

digital distance education through specific exemptions like section

110(2) or

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through a flexible balancing approach like fair use? What role should

be played by voluntary guidelines such as the Fair Use Guidelines for

Educational Multimedia (sometimes referred to as the Consortium of

College and University Media Centers (CCUMC) guidelines)?

education were to be adopted:

Which section 106 rights should or should not be covered?

What categories of works should or should not be covered?

To what extent should there be quantitative limitations on

the portions of a work that can be used?

Who should be entitled to the benefits of such an

exemption? Accredited or nonprofit institutions only?

How should the class of eligible recipients be defined?

Should such an exemption be limited to nonprofit distance

education activities?

Should the use of technological measures to protect

against unauthorized access to, and use or retention of, copyrighted

materials be required? If so, what types of measures?

To what extent should the availability of licenses for the

use of copyrighted works be considered in assessing eligibility?

Should there be limitations on student copying or

retention of the copyrighted materials?

Should the provision of electronic reserves be included?

Should the provision of any information about copyright

law be required as a condition for eligibility?

Are there other factors that should be taken into account?

(d) What would be the economic impact of such an exemption,

including the impact on the actual or potential markets of copyright

owners of different types of works?

(e) What would be the international implications of such an

exemption? Would it be consistent with U.S. treaty obligations?

Dated: December 18, 1998.

Marybeth Peters,

[FR Doc. 98-34010 Filed 12-22-98; 8:45 am]

BILLING CODE 1410-30-P

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