[House Report 107-687]
[From the U.S. Government Printing Office]
107th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 107-687
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TECHNOLOGY, EDUCATION, AND COPYRIGHT HARMONIZATION ACT OF 2001
_______
September 25, 2002.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany S. 487]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (S. 487) to amend chapter 1 of title 17, United States
Code, relating to the exemption of certain performances or
displays for educational uses from copyright infringement
provisions, to provide that the making of copies or
phonorecords of such performances or displays is not an
infringement under certain circumstances, and for other
purposes, having considered the same, reports favorably thereon
without amendment and recommends that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 3
Hearings......................................................... 4
Committee Consideration.......................................... 4
Vote of the Committee............................................ 5
Committee Oversight Findings..................................... 5
Performance Goals and Objectives................................. 5
New Budget Authority and Tax Expenditures........................ 5
Congressional Budget Office Cost Estimate........................ 5
Constitutional Authority Statement............................... 6
Section-by-Section Analysis and Discussion....................... 7
Changes in Existing Law Made by the Bill, as Reported............ 16
Markup Transcript................................................ 20
Purpose and Summary
S. 487, the ``Technology, Education And Copyright
Harmonization Act of 2001,'' or the ``TEACH Act,'' updates the
distance education provisions of the Copyright Act for the 21st
Century. The act allows students and teachers to benefit from
deployment in education of advanced digital transmission
technologies like the Internet, while introducing safeguards to
limit the additional risks to copyright owners that are
inherent in exploiting works in a digital format. This
legislation has been crafted in a process that has ensured
broad consensus of affected parties.
Education is the means by which we develop our nation's
human resources. In this information age, marked by both
cooperation and competition on a global scale, the ability of
the United States to meet its domestic and international
challenges and responsibilities is directly dependent on its
educational capacity. That capacity in turn will be determined
by the quality of our educational programs and their reach to
all sectors of the public. For our nation to maintain its
competitive edge, it will need to extend education beyond
children and young adults to lifelong learning for working
adults, and to reach all students of all income levels, in
cities and rural settings, in schools and on campuses, in the
workplace, at home, and at times selected by students to meet
their needs.
Digital distance education helps make this possible,
whether in the traditional sense, when instructor and student
are separated in place and perhaps time, or in new hybrids of
traditional classroom education combined with online
components. Increasingly, college students can submit class
assignments by email and participate in discussions that
connect students in a classroom with students beyond the
classroom. Similarly, K-12 students can learn about the customs
and cultures of other countries through real-time audiovisual
conversations with pen pals from those countries; they can
learn science in new ways by having scientific demonstrations
and actual experiments conducted at distant locations brought
to them in real time via the Internet. The National Science
Foundation, the National Academy of Sciences, and other
scientific societies and educational organizations are working
hard to improve our nation's science and mathematics education;
other groups are developing new ways to bring humanities and
the arts to students and the broader public. Many of these new
educational efforts draw on advances in information technology
and digital networks.
The TEACH Act amends sections 110(2) and 112 of the
Copyright Act to facilitate the growth and development of
digital distance education. The act expands the exempted
copyright rights, the types of transmissions, and the
categories of works that the exemption covers beyond those that
are covered by the existing exemption for performances and
displays of certain copyrighted works in the course of
instructional transmissions. Thus, for example, it allows
transmissions to locations other than a physical classroom, and
allows for performances of reasonable and limited portions of
audiovisual works, sound recordings, and other works within the
scope of the exemption. At the same time, it maintains and
clarifies the concept of ``mediated instructional activities''
to which the exemption applies, and includes safeguards such as
obligations to implement technological protection measures and
limitations on the amounts of certain types of works that may
be performed or displayed. The act also amends section 112 of
the Copyright Act to permit storage of copyrighted material on
servers in order to permit the performances and displays
authorized by section 110(2) to be made asynchronously in
distance education courses.
Background and Need for the Legislation
Section 110(2) of the Copyright Act was enacted in 1976 \1\
on the basis of a policy determination that certain
performances and displays of copyrighted works in connection
with systematic instruction using then-known forms of distance
education should be permitted without a need to obtain a
license or rely on fair use. The technological characteristics
of digital transmissions have rendered the language of section
110(2) inapplicable to the most advanced delivery methods for
instruction. Without an amendment to accommodate these new
technologies, the policy behind the 1976 act would be
increasingly diminished.
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\1\ Pub. L. No. 94-553, 90 Stat. 2549 (1976).
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At the same time, two factors recommend some recalibrating
of the policy balance struck in 1976. The characteristics of
digital transmission technologies present new educational
opportunities, such as the ability to provide a media-rich,
interactive educational experience to students unable to attend
classes at the physical location of the institution. On the
other hand, the ability of digital transmission technologies to
disseminate rapidly and without control virtually infinite
numbers of high quality copies, create new risks for the owners
of copyrighted works used in distance education.
In the 5 years leading up to the passage of the Digital
Millennium Copyright Act (DMCA) in 1998,\2\ the application of
copyright law to distance education using digital technologies
was the subject of public debate and attention in the United
States. Extensive discussions concerning the issue were
conducted during Congress' consideration of the DMCA, but no
conclusion was reached. Therefore, in section 403 of the DMCA,
Congress directed the Copyright Office to consult with
representatives of copyright owners, non-profit educational
institutions, and non-profit 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 needs of users of copyrighted works.'' \3\ The
recommendations were to include any legislation the Register of
Copyrights considered appropriate to achieve that objective.
The Copyright Office was specifically directed to consider the
following issues: the need for a new exemption, the categories
of works to be included in any exemption, the appropriate
quantitative limitations on the portions of works that may be
used under any exemption, which parties should be eligible for
any exemption, which parties should be eligible recipients of
distance education material under any exemption, the extent to
which technological protection measures should be mandated as a
condition of eligibility for any exemption, the extent to which
the availability of licenses should be considered in assessing
the eligibility for any exemption, and other issues the Office
considered appropriate.
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\2\ Pub. L. No. 105-304, 112 Stat. 2877 (1998).
\3\ Id.
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The Copyright Office conducted an extensive and intensive
process of identifying stakeholders, holding public hearings,
soliciting comments, conducting research, and consulting with
experts in various fields. On June 24, 1999, the Register of
Copyrights formally presented the findings and recommendations
of the Copyright Office to the Subcommittee on Courts and
Intellectual Property.\4\ Among other things, the Copyright
Office recommended the following changes: elimination of the
requirement of a physical classroom, clarification that the
term ``transmission'' covers digital transmissions, expanding
the rights covered by the exemption to include those needed to
accomplish network transmissions, expanding the categories of
works exempted from the performance rights beyond the current
coverage of non-dramatic literary and musical works, and
creating new safeguards to counteract the risks imposed by
digital transmissions.\5\
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\4\ Register of Copyrights, Report on Copyright and Digital
Distance Education (1999).
\5\ Id.
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On March 7, 2001, Senator Hatch, joined by Senator Leahy,
introduced S. 487, the ``Technology, Education and Copyright
Harmonization Act of 2001,'' or the ``TEACH Act,'' \6\ to
implement many of the Copyright Office recommendations. On
March 17, 2001, the Senate Judiciary Committee met in executive
session to consider S. 487. An amendment in the nature of a
substitute was offered by the Chairman Hatch, together with the
Ranking Member Leahy, which had been developed to implement the
purposes of the TEACH Act, following extensive discussions with
the education and copyright owner communities, and with further
assistance from the Copyright Office. The substitute amendment
was adopted by unanimous consent and the bill, as amended, was
then ordered to be favorably reported to the full Senate by
unanimous consent. On June 7, 2001, S. 487, as amended, passed
the Senate by unanimous consent.
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\6\ S. 487, 107th Cong., 1st Sess. (2001). See 2000 Cong. Rec. S
2008-2009 (daily ed. Mar. 7, 2001).
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Hearings
The Committee's Subcommittee on Courts, the Internet, and
Intellectual Property held a hearing on S. 487 on June 27,
2001. Testimony was received from the Honorable Marybeth
Peters, Register of Copyrights, Copyright Office of the United
States, Library of Congress; Allan Robert Adler, Vice
President, Legal & Government Affairs, Association of American
Publishers, Inc.; and John C. Vaughn, Executive Vice President,
Association of American Universities.
Committee Consideration
On July 11, 2001, the Subcommittee on Courts, the Internet,
and Intellectual Property met in open session and ordered
favorably reported the bill S. 487, by voice vote, a quorum
being present. On July 17, 2002, the Committee met in open
session and ordered favorably reported the bill S. 487, by
voice vote, a quorum being present.
Vote of the Committee
There were no recorded votes on S. 487.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Performance Goals and Objectives
S. 487 does not authorize funding. Therefore, clause 3(c)
of rule XIII of the Rules of the House of Representatives is
inapplicable.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to S. 487, the following estimate and comparison
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 26, 2002.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 487, the Technology,
Education, and Copyright Harmonization Act of 2001.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Ken Johnson
(for Federal costs), who can be reached at 226-2860, and Paige
Piper/Bach (for the private-sector impact), who can be reached
at 226-2940.
Sincerely,
Dan L. Crippen, Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
S. 487--Technology, Education, and Copyright Harmonization Act of 2001.
S. 487 would modify the exemption under copyright law for
schools and governments that display and copy literature,
music, and other material for educational purposes. Copyright
laws are administered by the Copyright Office. The act also
would require the Patent and Trademark Office (PTO) to report
to the Congress within 6 months of enactment on the range of
technologies that are available to protect copyrighted material
that is available in digital form.
Based on information from the Copyright Office and the PTO,
CBO estimates that implementing S. 487 would have a negligible
impact on the operating budgets of those agencies. The act
would not affect direct spending or receipts; therefore, pay-
as-you-go procedures would not apply.
S. 487 contains no intergovernmental mandates as defined in
the Unfunded Mandates Reform Act (UMRA) and would impose no
costs on State, local, or tribal governments.
S. 487 would impose a private-sector mandate, as defined by
UMRA. CBO estimates that the direct cost of the mandates would
fall well below the annual threshold established by UMRA for
private-sector mandates ($115 million in 2002, adjusted
annually for inflation).
S. 487 would impose a private-sector mandate as defined by
UMRA on copyright owners. The act would limit the right of
copyright owners to collect compensation under copyright law
for use of certain secondary materials by educators in classes
offered over the Internet. It would clarify existing law to
exempt the digital transmission of such materials used in
distance learning from copyright control. According to
information from the U.S. Copyright Office and industry
sources, compensation currently received by copyright owners
from the use of those materials is minimal. CBO estimates,
therefore, that the direct cost of the mandate, measured as net
income forgone, would fall well below the annual threshold
established by UMRA for private-sector mandates ($115 million
in 2002, adjusted annually for inflation).
On May 29, 2001, CBO transmitted a cost estimate for S. 487
as ordered reported by the Senate Committee on the Judiciary on
May 17, 2001. The two versions of the act are nearly identical,
and the estimated costs are the same. Both versions of the bill
contain the same private-sector mandate.
The CBO staff contacts for this estimate are Ken Johnson
(for Federal costs), who can be reached at 226-2860, and Paige
Piper/Bach (for the private-sector impact), who can be reached
at 226-2940. This estimate was approved by Peter H. Fontaine,
Deputy Assistant Director for Budget Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of the rule XIII of the Rules of
the House of Representatives, the Committee finds the authority
for this legislation in article I, section 8 of the
Constitution.
Section-by-Section Analysis and Discussion
SEC. 1. EDUCATION USE COPYRIGHT EXEMPTION.
Subsection (a): Short Title
This section provides that this act may be cited as the
``Technology, Education and Copyright Harmonization Act of
2001.''
Subsection (b): Exemption of Certain Performances and Displays for
Educational Uses
Summary
Section 1(b) of the TEACH Act amends section 110(2) of the
Copyright Act to encompass performances and displays of
copyrighted works in digital distance education under
appropriate circumstances. The section expands the scope of
works to which the amended section 110(2) exemption applies to
include performances of reasonable and limited portions of
works other than nondramatic literary and musical works (which
are currently covered by the exemption), while also limiting
the amount of any work that may be displayed under the
exemption to what is typically displayed in the course of a
live classroom session. At the same time, section 1(b) removes
the concept of the physical classroom, while maintaining and
clarifying the requirement of mediated instructional activity
and limiting the availability of the exemption to mediated
instructional activities of governmental bodies and
``accredited'' non-profit educational institutions. This
section of the act also limits the amended exemption to exclude
performances and displays given by means of a copy or
phonorecord that is not lawfully made and acquired, which the
transmitting body or institution knew or had reason to believe
was not lawfully made and acquired. In addition, section 1(b)
requires the transmitting institution to apply certain
technological protection measures to protect against retention
of the work and further downstream dissemination. The section
also clarifies that participants in authorized digital distance
education transmissions will not be liable for any infringement
by reason of transient or temporary reproductions that may
occur through the automatic technical process of a digital
transmission for the purpose of a performance or display
permitted under the section. Obviously, with respect to such
reproductions, the distribution right would not be infringed.
Throughout the act, the term ``transmission'' is intended to
include transmissions by digital, as well as analog means.
Works Subject to the Exemption and Applicable Portions
The TEACH Act expands the scope of the section 110(2)
exemption to apply to performances and displays of all
categories of copyrighted works, subject to specific exclusions
for works ``produced or marketed primarily for performance or
display as part of mediated instructional activities
transmitted via digital networks'' and performance or displays
``given by means of a copy or phonorecord that is not lawfully
made and acquired,'' which the transmitting body or institution
``knew or had reason to believe was not lawfully made and
acquired.''
Unlike the current section 110(2), which applies only to
public performances of non-dramatic literary or musical works,
the amendment would apply to public performances of any type of
work, subject to certain exclusions set forth in section
110(2), as amended. The performance of works other than non-
dramatic literary or musical works is limited, however, to
``reasonable and limited portions'' of less than the entire
work. What constitutes a ``reasonable and limited'' portion
should take into account both the nature of the market for that
type of work and the pedagogical purposes of the performance.
In addition, because ``display'' of certain types of works,
such as literary works using an ``e-book'' reader, could
substitute for traditional purchases of the work (e.g., a text
book), the display exemption is limited to ``an amount
comparable to that which is typically displayed in the course
of a live classroom setting.'' This limitation is a further
implementation of the ``mediated instructional activity''
concept described below, and recognizes that a ``display'' may
have a different meaning and impact in the digital environment
than in the analog environment to which section 110(2) has
previously applied. The ``limited portion'' formulation used in
conjunction with the performance right exemption is not used in
connection with the display right exemption, because, for
certain works, display of the entire work could be appropriate
and consistent with displays typically made in a live classroom
setting (e.g., short poems or essays, or images of pictorial,
graphic, or sculptural works, etc.).
The exclusion for works ``produced or marketed primarily
for performance or display as part of mediated instructional
activities transmitted via digital networks'' is intended to
prevent the exemption from undermining the primary market for
(and, therefore, impairing the incentive to create, modify or
distribute) those materials whose primary market would
otherwise fall within the scope of the exemption. The concept
of ``performance or display as part of mediated instructional
activities'' is discussed in greater detail below, in
connection with the scope of the exemption. It is intended to
have the same meaning and application here, so that works
produced or marketed primarily for activities covered by the
exemption would be excluded from the exemption. The exclusion
is not intended to apply generally to all educational materials
or to all materials having educational value. The exclusion is
limited to materials whose primary market is ``mediated
instructional activities,'' i.e., materials performed or
displayed as an integral part of the class experience,
analogous to the type of performance or display that would take
place in a live classroom setting. At the same time, the
reference to ``digital networks'' is intended to limit the
exclusion to materials whose primary market is the digital
network environment, not instructional materials developed and
marketed for use in the physical classroom.
The exclusion of performances or displays ``given by means
of a copy or phonorecord that is not lawfully made and
acquired'' under title 17 is based on a similar exclusion in
the current language of section 110(1) for the performance or
display of an audiovisual work in the classroom. Unlike the
provision in section 110(1), the exclusion here applies to the
performance or display of any work. But, as in section 110(1),
the exclusion applies only where the transmitting body or
institution ``knew or had reason to believe'' that the copy or
phonorecord was not lawfully made and acquired. As noted in the
Register's Report, the purpose of the exclusion is to reduce
the likelihood that an exemption intended to cover only the
equivalent of traditional concepts of performance and display
would result in the proliferation or exploitation of
unauthorized copies.\7\An educator would typically purchase,
license, rent, make a fair-use copy, or otherwise lawfully
acquire the copy to be used, and works not yet made available
in the market (whether by distribution, performance or display)
would, as a practical matter, be rendered ineligible for use
under the exemption.
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\7\ REGISTER OF COPYRIGHTS, REPORT ON COPYRIGHT AND DIGITAL
DISTANCE EDUCATION (1999) at 159.
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Eligible Transmitting Entities
As under the current section 110(2), the exemption, as
amended, is limited to government bodies and non-profit
educational institutions. However, due to the fact that, as the
Register's Report points out, ``nonprofit educational
institutions'' are no longer a closed and familiar group, and
the ease with which anyone can transmit educational material
over the Internet, the amendment would require non-profit
educational institutions to be ``accredited'' in order to
provide further assurances that the institution is a bona fide
educational institution. It is not otherwise intended to alter
the eligibility criteria. Nor is it intended to limit or affect
any other provision of the Copyright Act that relates to non-
profit educational institutions or to imply that non-accredited
educational institutions are necessarily not bona fide.
``Accreditation'' is defined in section 1(b)(2) of the
TEACH Act in terms of the qualification of the educational
institution. It is not defined in terms of particular courses
or programs. Thus, an accredited nonprofit educational
institution qualifies for the exemption with respect to its
courses whether or not the courses are part of a degree or
certificate-granting program.
Qualifying Performances and Displays; Mediated
Instructional Activities
Subparagraph (2)(A) of the amended exemption provides that
the exemption applies to a performance or display made ``by, at
the direction of, or under the actual supervision of an
instructor as an integral part of a class session offered as a
regular part of . . . systematic mediated instructional
activity.'' The subparagraph includes several requirements, all
of which are intended to make clear that the transmission must
be part of mediated instructional activity. First, the
performance or display must be made by, under the direction of,
or under the actual supervision of an instructor. The
performance or display may be initiated by the instructor. It
may also be initiated by a person enrolled in the class as long
as it is done either at the direction, or under the actual
supervision, of the instructor. ``Actual'' supervision is
intended to require that the instructor is, in fact,
supervising the class activities, and that supervision is not
in name or theory only. It is not intended to require either
constant, real-time supervision by the instructor or pre-
approval by the instructor for the performance or display.
Asynchronous learning, at the pace of the student, is a
significant and beneficial characteristic of digital distance
education, and the concept of control and supervision is not
intended to limit the qualification of such asynchronous
activities for this exemption.
The performance or display must also be made as an
``integral part'' of a class session, so it must be part of a
class itself, rather than ancillary to it. Further, it must
fall within the concept of ``mediated instructional
activities'' as described in section 1(b)(2) of the TEACH Act.
This latter concept is intended to require the performance or
display to be analogous to the type of performance or display
that would take place in a live classroom setting. Thus,
although it is possible to display an entire textbook or
extensive course-pack material through an e-book reader or
similar device or computer application, this type of use of
such materials as supplemental reading would not be analogous
to the type of display that would take place in the classroom,
and therefore would not be authorized under the exemption.
The amended exemption is not intended to address other uses
of copyrighted works in the course of digital distance
education, including student use of supplemental or research
materials in digital form, such as electronic course packs, e-
reserves, and digital library resources. Such activities do not
involve uses analogous to the performances and displays
currently addressed in section 110(2).
The ``mediated instructional activity'' requirement is thus
intended to prevent the exemption provided by the TEACH Act
from displacing textbooks, course packs or other material in
any media, copies or phonorecords of which are typically
purchased or acquired by students for their independent use and
retention (in most post-secondary and some elementary and
secondary contexts). The Committee notes that in many secondary
and elementary school contexts, such copies of such materials
are not purchased or acquired directly by the students, but
rather are provided for the students' independent use and
possession (for the duration of the course) by the institution.
The limitation of the exemption to systematic ``mediated
instructional activities'' in subparagraph (2)(A) of the
amended exemption operates together with the exclusion in the
opening clause of section 110(2) for works ``produced or
marketed primarily for performance or display as part of
mediated instructional activities transmitted via digital
networks'' to place boundaries on the exemption. The former
relates to the nature of the exempt activity; the latter limits
the relevant materials by excluding those primarily produced or
marketed for the exempt activity.
One example of the interaction of the two provisions is the
application of the exemption to textbooks. Pursuant to
subparagraph (2)(A), which limits the exemption to ``mediated
instructional activities,'' the display of material from a
textbook that would typically be purchased by students in the
local classroom environment, in lieu of purchase by the
students, would not fall within the exemption. Conversely,
because textbooks typically are not primarily produced or
marketed for performance or display in a manner analogous to
performances or display in the live classroom setting, they
would not per se be excluded from the exemption under the
exclusion in the opening clause. Thus, an instructor would not
be precluded from using a chart or table or other short excerpt
from a textbook different from the one assigned for the course,
or from emphasizing such an excerpt from the assigned textbook
that had been purchased by the students.
The requirement of subparagraph (2)(B), that the
performance or display must be directly related and of material
assistance to the teaching content of the transmission, is
found in current law, and has been retained in its current
form. As noted in the Register's Report \8\, this test of
relevance and materiality connects the copyrighted work to the
curriculum, and it means that the portion performed or
displayed may not be performed or displayed for the mere
entertainment of the students, or as unrelated background
material.
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\8\ Id. at 80.
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Limitations on Receipt of Transmissions
Unlike current section 110(2), the TEACH Act amendment
removes the requirement that transmissions be received in
classrooms or similar places devoted to instruction unless the
recipient is an officer or employee of a governmental body or
is prevented by disability or special circumstances from
attending a classroom or similar place of instruction. One of
the great potential benefits of digital distance education is
its ability to reach beyond the physical classroom, to provide
quality educational experiences to all students of all income
levels, in cities and rural settings, in schools and on
campuses, in the workplace, at home, and at times selected by
students to meet their needs.
In its place, the act substitutes the requirements in
subparagraph (2)(C) that the transmission be made solely for
and, to the extent technologically feasible, the reception be
limited to students officially enrolled in the course for which
the transmission is made or governmental employees as part of
their official duties or employment. This requirement is not
intended to impose a general requirement of network security.
Rather, it is intended to require only that the students or
employees authorized to be recipients of the transmission
should be identified, and the transmission should be
technologically limited to such identified authorized
recipients through systems such as password access or other
similar measures.
Additional Safeguards to Counteract New Risks
The digital transmission of works to students poses greater
risks to copyright owners than transmissions through analog
broadcasts. Digital technologies make possible the creation of
multiple copies, and their rapid and widespread dissemination
around the world. Accordingly, the TEACH Act includes several
safeguards not currently present in section 110(2).
First, a transmitting body or institution seeking to invoke
the exemption is required to institute policies regarding
copyright and to provide information to faculty, students, and
relevant staff members that accurately describe and promote
compliance with copyright law. Further, the transmitting
organization must provide notice to recipients that materials
used in connection with the course may be subject to copyright
protection. These requirements are intended to promote an
environment of compliance with the law, inform recipients of
their responsibilities under copyright law, and decrease the
likelihood of unintentional and uninformed acts of
infringement.
Second, in the case of a digital transmission, the
transmitting body or institution is required to apply
technological measures to prevent: (i) retention of the work in
accessible form by recipients to which it sends the work for
longer than the class session; and (ii) unauthorized further
dissemination of the work in accessible form by such
recipients. Measures intended to limit access to authorized
recipients of transmissions from the transmitting body or
institution are not addressed in this subparagraph (2)(D).
Rather, they are the subjects of subparagraph (2)(C).
Third, in the case of a digital transmission, the
transmitting body or institution must not ``engage in conduct
that could reasonably be expected to interfere with
technological measures used by copyright owners to prevent such
retention or unauthorized further dissemination.'' As the
context makes clear, this requirement refers to conduct that is
taken in connection with the particular transmissions subject
to the exemption, rather than to the broader activities of the
transmitting body or institution generally. Further, like the
other provisions under paragraph (2)(D)(ii), the requirement
has no legal effect other than as a condition of eligibility
for the exemption. Thus, it is not otherwise enforceable to
preclude or prohibit conduct.
The requirement that technological measures be applied to
limit retention for no longer than the ``class session'' refers
back to the requirement that the performance be made as an
``integral part of a class session.'' The duration of a ``class
session'' in asynchronous distance education would generally be
that period during which a student is logged on to the server
of the institution or governmental body making the display or
performance, but is likely to vary with the needs of the
student and with the design of the particular course. It does
not mean the duration of a particular course (i.e., a semester
or term), but rather is intended to describe the equivalent of
an actual single face-to-face mediated class session (although
it may be asynchronous and one student may remain online or
retain access to the performance or display for longer than
another student as needed to complete the class session).
Although flexibility is necessary to accomplish the pedagogical
goals of distance education, the Committee expects that a
common sense construction will be applied so that a copy or
phonorecord displayed or performed in the course of a distance
education program would not remain in the possession of the
recipient in a way that could substitute for acquisition or for
uses other than use in the particular class session.
Conversely, the technological protection measure in
subparagraph (2)(D)(ii) refers only to retention of a copy or
phonorecord in the computer of the recipient of a transmission.
The material to be performed or displayed may, under the
amendments made by the act to section 112 and with certain
limitations set forth therein, remain on the server of the
institution or government body for the duration of its use in
one or more courses, and may be accessed by a student each time
the student logs on to participate in the particular class
session of the course in which the display or performance is
made. The reference to ``accessible form'' recognizes that
certain technological protection measures that could be used to
comply with subparagraph (2)(D)(ii) do not cause the
destruction or prevent the making of a digital file; rather
they work by encrypting the work and limiting access to the
keys and the period in which such file may be accessed. On the
other hand, an encrypted file would still be considered to be
in ``accessible form'' if the body or institution provides the
recipient with a key for use beyond the class session.
Paragraph (2)(D)(ii) provides, as a condition of
eligibility for the exemption, that a transmitting body or
institution apply technological measures that reasonably
prevent both retention of the work in accessible form for
longer than the class session and further dissemination of the
work. This requirement does not impose a duty to guarantee that
retention and further dissemination will never occur. Nor does
it imply that there is an obligation to monitor recipient
conduct. Moreover, the ``reasonably prevent'' standard should
not be construed to imply perfect efficacy in stopping
retention or further dissemination. The obligation to
``reasonably prevent'' contemplates an objectively reasonable
standard regarding the ability of a technological protection
measure to achieve its purpose. Examples of technological
protection measures that exist today and would reasonably
prevent retention and further dissemination, include measures
used in connection with streaming to prevent the copying of
streamed material, such as the Real Player ``Secret Handshake/
Copy Switch'' technology discussed in Real Networks v.
Streambox, 2000 WL 127311 (Jan. 18, 2000) or digital rights
management systems that limit access to or use of encrypted
material downloaded onto a computer. It is not the Committee's
intent, by noting the existence of the foregoing, to specify
the use of any particular technology to comply with
subparagraph (2)(D)(ii). Other technologies will certainly
evolve. Further, it is possible that, as time passes, a
technological protection measure may cease to reasonably
prevent retention of the work in accessible form for longer
than the class session and further dissemination of the work,
either due to the evolution of technology or to the widespread
availability of a hack that can be readily used by the public.
In those cases, a transmitting organization would be required
to apply a different measure.
Nothing in section 110(2) should be construed to affect the
application or interpretation of section 1201. Conversely,
nothing in section 1201 should be construed to affect the
application or interpretation of section 110(2).
Transient and Temporary Copies
Section 1(b)(2) of the TEACH Act implements the Register's
recommendation that liability not be imposed upon those who
participate in digitally transmitted performances and displays
authorized under this subsection by reason of copies or
phonorecords made through the automatic technical process of
such transmission, or any distribution resulting therefrom.
Certain modifications have been made to the Register's
recommendations to accommodate instances where the
recommendation was either too broad or not sufficiently broad
to cover the appropriate activities.
The third paragraph added to the amended exemption under
section 1(b)(2) of the TEACH Act recognizes that transmitting
organizations should not be responsible for copies or
phonorecords made by third parties, beyond the control of the
transmitting organization. However, consistent with the
Register's concern that the exemption should not be transformed
into a mechanism for obtaining copies \9\, the paragraph also
requires that such transient or temporary copies stored on the
system or network controlled or operated by the transmitting
body or institution shall not be maintained on such system or
network ``in a manner ordinarily accessible to anyone other
than anticipated recipients'' or ``in a manner ordinarily
accessible to such anticipated recipients for a longer period
than is reasonably necessary to facilitate the transmissions''
for which they are made.
---------------------------------------------------------------------------
\9\ Id. at 151.
---------------------------------------------------------------------------
The liability of intermediary service providers remains
governed by section 512, but, subject to section 512(d) and
section 512(e), section 512 will not affect the legal
obligations of a transmitting body or institution when it
selects material to be used in teaching a course, and
determines how it will be used and to whom it will be
transmitted as a provider of content.
The paragraph refers to ``transient'' and ``temporary''
copies consistent with the terminology used in section 512,
including transient copies made in the transmission path by
conduits and temporary copies, such as caches, made by the
originating institution, by service providers or by recipients.
Organizations providing digital distance education will, in
many cases, provide material from source servers that create
additional temporary or transient copies or phonorecords of the
material in storage known as ``caches'' in other servers in
order to facilitate the transmission. In addition, transient or
temporary copies or phonorecords may occur in the transmission
stream, or in the computer of the recipient of the
transmission. Thus, by way of example, where content is
protected by a digital rights management system, the
recipient's browser may create a cache copy of an encrypted
file on the recipient's hard disk, and another copy may be
created in the recipient's random access memory at the time the
content is perceived. The third paragraph added to the amended
exemption by section 1(b)(2) of the TEACH Act is intended to
make clear that those authorized to participate in digitally
transmitted performances and displays as authorized under
section 110(2) are not liable for infringement as a result of
such copies created as part of the automatic technical process
of the transmission if the requirements of that language are
met. The paragraph is not intended to create any implication
that such participants would be liable for copyright
infringement in the absence of the paragraph.
Subsection (c): Ephemeral Recordings
One way in which digitally transmitted distance education
will expand America's educational capacity and effectiveness is
through the use of asynchronous education, where students can
take a class when it is convenient for them, not at a specific
hour designated by the body or institution. This benefit is
likely to be particularly valuable for working adults.
Asynchronous education also has the benefit of proceeding at
the student's own pace, and freeing the instructor from the
obligation to be in the classroom or on call at all hours of
the day or night.
In order for asynchronous distance education to proceed,
organizations providing distance education transmissions must
be able to load material that will be displayed or performed on
their servers, for transmission at the request of students. The
TEACH Act's amendment to section 112 makes that possible.
Under new subsection 112(f)(1), transmitting organizations
authorized to transmit performances or displays under section
110(2) may load on their servers copies or phonorecords of the
performance or display authorized to be transmitted under
section 110(2) to be used for making such transmissions. The
subsection recognizes that it often is necessary to make more
than one ephemeral recording in order to efficiently carry out
digital transmissions, and authorizes the making of such copies
or phonorecords.
Subsection 112(f) imposes several limitations on the
authorized ephemeral recordings. First, they may be retained
and used solely by the government body or educational
institution that made them. No further copies or phonorecords
may be made from them, except for copies or phonorecords that
are authorized by subsection 110(2), such as the copies that
fall within the scope of the third paragraph added to the
amended exemption under section 1(b)(2) of the TEACH Act. The
authorized ephemeral recordings must be used solely for
transmissions authorized under section 110(2).
The Register's Report notes the sensitivity of copyright
owners to the digitization of works that have not been
digitized by the copyright owner. As a general matter,
subsection 112(f) requires the use of works that are already in
digital form. However, the Committee recognizes that some works
may not be available for use in distance education, either
because no digital version of the work is available to the
institution, or because available digital versions are subject
to technological protection measures that prevent their use for
the performances and displays authorized by section 110(2). In
those circumstances where no digital version is available to
the institution or the digital version that is available is
subject to technological measures that prevent its use for
distance education under the exemption, section 112(f)(2)
authorizes the conversion from an analog version, but only
conversion of the portion or amount of such works that are
authorized to be performed or displayed under section 110(2).
It should be emphasized that subsection 112(f)(2) does not
provide any authorization to convert print or other analog
versions of works into digital format except as permitted in
section 112(f)(2).
Relationship to Fair Use and Contractual Obligations
As the Register's Report makes clear ``critical to [its
conclusion and recommendations] is the continued availability
of the fair use doctrine.'' \10\ Nothing in this act is
intended to limit or otherwise to alter the scope of the fair
use doctrine. As the Register's Report explains:
---------------------------------------------------------------------------
\10\ Id. at xvi.
Fair use is a critical part of the distance education
landscape. Not only instructional performances and
displays, but also other educational uses of works,
such as the provision of supplementary materials or
student downloading of course materials, will continue
to be subject to the fair use doctrine. Fair use could
apply as well to instructional transmissions not
covered by the changes to section 110(2) recommended
above. Thus, for example, the performance of more than
a limited portion of a dramatic work in a distance
education program might qualify as fair use in
appropriate circumstances.\11\
---------------------------------------------------------------------------
\11\ Id. at 161-162.
The Register's Report also recommends that the legislative
history of legislation implementing its distance education
requirements make certain points about fair use. Specifically,
---------------------------------------------------------------------------
this legislation is enacted in recognition of the following:
a. LThe fair use doctrine is technologically neutral
and applies to activities in the digital environment;
and
b. Lthe lack of established guidelines for any
particular type of use does not mean that fair use is
inapplicable.\12\
---------------------------------------------------------------------------
\12\ Id.
While the Register's Report also examined and discussed a
variety of licensing issues with respect to educational uses
not covered by exemptions or fair use, these issues were not
included in the Report's legislative recommendations that
formed the basis for the TEACH Act. It is the view of the
Committee that nothing in this act is intended to affect in any
way the relationship between express copyright exemptions and
license restrictions.
Nonapplicability to Secure Tests
The Committee is aware and deeply concerned about the
phenomenon of school officials who are entrusted with copies of
secure test forms solely for use in actual test administrations
and using those forms for a completely unauthorized purpose,
namely helping students to study the very questions they will
be asked on the real test. The Committee does not in any way
intend to change current law with respect to application of the
Copyright Act or to undermine or lessen in any way the
protection afforded to secure tests under the Copyright Act.
Specifically, this section would not authorize a secure test
acquired solely for use in an actual test administration to be
used for any other purpose.
Subsection (d): PTO Report
The report requested in subsection (d) requests information
about technological protection systems to protect digitized
copyrighted works and prevent infringement. The report is
intended for the information of Congress and shall not be
construed to have any effect whatsoever on the meaning,
applicability, or effect of any provision of the Copyright Act
in general or the TEACH Act in particular.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
TITLE 17, UNITED STATES CODE
* * * * * * *
CHAPTER 1--SUBJECT MATTER AND SCOPE OF COPYRIGHT
* * * * * * *
Sec. 110. Limitations on exclusive rights: Exemption of certain
performances and displays
Notwithstanding the provisions of section 106, the
following are not infringements of copyright:
(1) * * *
[(2) performance of a nondramatic literary or
musical work or display of a work, by or in the course
of a transmission, if--
[(A) the performance or display is a
regular part of the systematic instructional
activities of a governmental body or a
nonprofit educational institution; and
[(B) the performance or display is directly
related and of material assistance to the
teaching content of the transmission; and
[(C) the transmission is made primarily
for--
[(i) reception in classrooms or
similar places normally devoted to
instruction, or
[(ii) reception by persons to whom
the transmission is directed because
their disabilities or other special
circumstances prevent their attendance
in classrooms or similar places
normally devoted to instruction, or
[(iii) reception by officers or
employees of governmental bodies as a
part of their official duties or
employment;]
(2) except with respect to a work produced or
marketed primarily for performance or display as part
of mediated instructional activities transmitted via
digital networks, or a performance or display that is
given by means of a copy or phonorecord that is not
lawfully made and acquired under this title, and the
transmitting government body or accredited nonprofit
educational institution knew or had reason to believe
was not lawfully made and acquired, the performance of
a nondramatic literary or musical work or reasonable
and limited portions of any other work, or display of a
work in an amount comparable to that which is typically
displayed in the course of a live classroom session, by
or in the course of a transmission, if--
(A) the performance or display is made by,
at the direction of, or under the actual
supervision of an instructor as an integral
part of a class session offered as a regular
part of the systematic mediated instructional
activities of a governmental body or an
accredited nonprofit educational institution;
(B) the performance or display is directly
related and of material assistance to the
teaching content of the transmission;
(C) the transmission is made solely for,
and, to the extent technologically feasible,
the reception of such transmission is limited
to--
(i) students officially enrolled in
the course for which the transmission
is made; or
(ii) officers or employees of
governmental bodies as a part of their
official duties or employment; and
(D) the transmitting body or institution--
(i) institutes policies regarding
copyright, provides informational
materials to faculty, students, and
relevant staff members that accurately
describe, and promote compliance with,
the laws of the United States relating
to copyright, and provides notice to
students that materials used in
connection with the course may be
subject to copyright protection; and
(ii) in the case of digital
transmissions--
(I) applies technological
measures that reasonably
prevent--
(aa) retention of
the work in accessible
form by recipients of
the transmission from
the transmitting body
or institution for
longer than the class
session; and
(bb) unauthorized
further dissemination
of the work in
accessible form by such
recipients to others;
and
(II) does not engage in
conduct that could reasonably
be expected to interfere with
technological measures used by
copyright owners to prevent
such retention or unauthorized
further dissemination;
The exemptions provided under paragraph (5) shall not be taken
into account in any administrative, judicial, or other
governmental proceeding to set or adjust the royalties payable
to copyright owners for the public performance or display of
their works. Royalties payable to copyright owners for any
public performance or display of their works other than such
performances or displays as are exempted under paragraph (5)
shall not be diminished in any respect as a result of such
exemption.
In paragraph (2), the term ``mediated instructional
activities'' with respect to the performance or display
of a work by digital transmission under this section
refers to activities that use such work as an integral
part of the class experience, controlled by or under
the actual supervision of the instructor and analogous
to the type of performance or display that would take
place in a live classroom setting. The term does not
refer to activities that use, in 1 or more class
sessions of a single course, such works as textbooks,
course packs, or other material in any media, copies or
phonorecords of which are typically purchased or
acquired by the students in higher education for their
independent use and retention or are typically
purchased or acquired for elementary and secondary
students for their possession and independent use.
For purposes of paragraph (2), accreditation--
(A) with respect to an institution
providing post-secondary education, shall be as
determined by a regional or national
accrediting agency recognized by the Council on
Higher Education Accreditation or the United
States Department of Education; and
(B) with respect to an institution
providing elementary or secondary education,
shall be as recognized by the applicable state
certification or licensing procedures.
For purposes of paragraph (2), no governmental body
or accredited nonprofit educational institution shall
be liable for infringement by reason of the transient
or temporary storage of material carried out through
the automatic technical process of a digital
transmission of the performance or display of that
material as authorized under paragraph (2). No such
material stored on the system or network controlled or
operated by the transmitting body or institution under
this paragraph shall be maintained on such system or
network in a manner ordinarily accessible to anyone
other than anticipated recipients. No such copy shall
be maintained on the system or network in a manner
ordinarily accessible to such anticipated recipients
for a longer period than is reasonably necessary to
facilitate the transmissions for which it was made.
* * * * * * *
Sec. 112. Limitations on exclusive rights: Ephemeral recordings
(a) * * *
* * * * * * *
(f)(1) Notwithstanding the provisions of section 106, and
without limiting the application of subsection (b), it is not
an infringement of copyright for a governmental body or other
nonprofit educational institution entitled under section 110(2)
to transmit a performance or display to make copies or
phonorecords of a work that is in digital form and, solely to
the extent permitted in paragraph (2), of a work that is in
analog form, embodying the performance or display to be used
for making transmissions authorized under section 110(2), if--
(A) such copies or phonorecords are retained and
used solely by the body or institution that made them,
and no further copies or phonorecords are reproduced
from them, except as authorized under section 110(2);
and
(B) such copies or phonorecords are used solely for
transmissions authorized under section 110(2).
(2) This subsection does not authorize the conversion of
print or other analog versions of works into digital formats,
except that such conversion is permitted hereunder, only with
respect to the amount of such works authorized to be performed
or displayed under section 110(2), if--
(A) no digital version of the work is available to
the institution; or
(B) the digital version of the work that is
available to the institution is subject to
technological protection measures that prevent its use
for section 110(2).
[(f)] (g) The transmission program embodied in a copy or
phonorecord made under this section is not subject to
protection as a derivative work under this title except with
the express consent of the owners of copyright in the
preexisting works employed in the program.
* * * * * * *
CHAPTER 8--COPYRIGHT ARBITRATION ROYALTY PANELS
* * * * * * *
Sec. 802. Membership and proceedings of copyright arbitration royalty
panels
(a) * * *
* * * * * * *
(c) Arbitration Proceedings.--Copyright arbitration royalty
panels shall conduct arbitration proceedings, subject to
subchapter II of chapter 5 of title 5, for the purpose of
making their determinations in carrying out the purposes set
forth in section 801. The arbitration panels shall act on the
basis of a fully documented written record, prior decisions of
the Copyright Royalty Tribunal, prior copyright arbitration
panel determinations, and rulings by the Librarian of Congress
under section 801(c). Any copyright owner who claims to be
entitled to royalties under section 111, 112, 114, 116, or 119,
any transmitting organization entitled to a statutory license
under section [112(f)] 112(g), any person entitled to a
statutory license under section 114(d), any person entitled to
a compulsory license under section 115, or any interested
copyright party who claims to be entitled to royalties under
section 1006, may submit relevant information and proposals to
the arbitration panels in proceedings applicable to such
copyright owner or interested copyright party, and any other
person participating in arbitration proceedings may submit such
relevant information and proposals to the arbitration panel
conducting the proceedings. In ratemaking proceedings, the
parties to the proceedings shall bear the entire cost thereof
in such manner and proportion as the arbitration panels shall
direct. In distribution proceedings, the parties shall bear the
cost in direct proportion to their share of the distribution.
* * * * * * *
Markup Transcript
BUSINESS MEETING
WEDNESDAY, JULY 17, 2002
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
Chairman Sensenbrenner. The Committee will be in order.
* * * * * * *
The next item on the agenda is the adoption of Senate 487,
the Technology Education, and Copyright Harmonization Act of
2001. The Chair recognizes the gentleman from North Carolina,
Mr. Coble, for a motion.
Mr. Coble. Mr. Chairman, the Subcommittee on Courts, the
Internet, and Intellectual Property reports favorably the bill
S. 487 and moves its favorable recommendation to the full
House.
Chairman Sensenbrenner. Without objection, S. 487 will be
considered as read and open for amendment at any point.
[The bill, S. 487, follows:]
Chairman Sensenbrenner. The Chair recognizes the gentleman
from North Carolina to strike the last word.
Mr. Coble. Mr. Chairman, the Copyright Act contains
provisions outlining permissible uses of copyrighted material
for educational purposes, such as fair use and other
educational exemptions from copyright infringement. These
provisions were written more than two decades ago, however,
prior to the advent of digital technologies. Accordingly, the
purpose of S. 487 is to update the Copyright Act by
appropriately striking a balance between the rights of
copyright owners and the ability of users to access copyrighted
material via the Internet and other media for educational
purposes.
Mr. Chairman and colleagues, this bill is popularly known
as the Distance Education or the Teach Act. The legislation
makes three basic changes to current law.
First, the bill eliminates the current eligibility
requirements for distance learning exemption that the
instruction occur in a physical classroom or that special
circumstances prevent the attendance of students in the
classroom.
Second, the bill clarifies that the distance learning
exemption covers the transient or temporary copies that may
occur through the automatic technical process of transmitting
material over the Internet.
Third, and finally, S. 487 amends the Copyright Act to
allow educators to show reasonable and limited portions of
dramatic literary and musical works, audiovisual works, and
sound recordings, in addition to the complete versions of non-
dramatic literary and musical works which are currently
exempted.
Mr. Chairman, S. 487 is a product of bipartisan negotiation
and in my opinion will greatly assist the education community
without compromising the rights of copyright holders. I urge
its adoption and yield back the balance of my time.
Chairman Sensenbrenner. The gentleman from Michigan, Mr.
Conyers, moves to strike the last word.
Mr. Conyers. Thank you. On this side, we completely agree
with the gentleman from North Carolina, Mr. Coble, and I have a
statement I'd like to enter into the record.
Chairman Sensenbrenner. Without objection, all Members may
enter opening statements in the record at this point.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress From the State of Michigan
There are many divides when it comes to who should have access to
copyrighted content and how, but we all can agree that teachers and
students should have access to books, music, and other works that are
used to enhance the learning process and spur academic debate. This is
important because more and more people are using computer for
educational reasons, from doing research to communicating with teachers
over the Internet.
Unfortunately, the distance learning exemption of the Copyright
Act, which is designed to let teachers distribute copyrighted content
to students without paying royalties, has not kept up with the times.
The law does not let educators use copyrighted content in online
classrooms, where teachers and students meet on a virtual campus
instead of an actual one.
Fortunately, the content owners and educators were able to arrive
at this compromise legislation to update the exemption. S. 487 makes
several important changes to current law. First, it eliminates the
requirement for the distance learning exemption that the instruction
occur in a physical classroom. This is important because, in today's
learning environment, many students attend class in cyberspace.
Second, to make sure no one takes advantage of the exemption and
distributes the content to make money, schools claiming the exemption
must not only institute policies regarding the use copyrighted content
but also ensure they are not used illegally.
Third, to protect those whose livelihood depends on royalties from
distance learning materials themselves, the bill excludes from the
exemption any works produced or marketed for that purpose.
Finally, the bill tells the PTO to report to Congress on the
availability and development of technological measures to protect
copyrighted content from infringement. This report will tell us what
technologies are available to facilitate distance learning while
deterring infringement.
This legislation is an important step in modernizing our
educational systems and is a remarkable signal of how creators and
users of intellectual property can work together to resolve their
differences.
I urge my colleagues to vote ``Yes'' on this legislation.
[The prepared statement of Mr. Berman follows:]
Prepared Statement of the Honorable Howard L. Berman, a Representative
in Congress From the State of California
Mr. Chairman,
Thank you for calling this markup on S. 487, the ``Technology,
Education and Copyright Harmonization Act.'' I think it is important
that we enact this legislation before the 107th Congress adjourns, and
I commend you for moving forward today.
This bill represents an excellent compromise reached after much
deliberation in the Senate. It is my understanding the compromise is so
delicate that any amendments could end up scuttling the entire bill.
Therefore, I encourage my fellow Committee members to resist the urge
to offer even well-meaning amendments. For my own part, I will resist
the urge to offer an amendment even though there is a strong argument
to be made that the TEACH Act should be coupled with legislation
addressing state sovereign immunity for copyright infringement.
This bill represents a significant revision of copyright law. Under
certain circumstances, it would exempt a variety of entities from
copyright infringement liability if they digitize and place online the
copyrighted works of others.
This significant, additional restriction on copyrights is justified
by the critical importance and unbounded promise of distance education.
With distance education, we can help level the playing field by
bringing the tools of success to those students who have the least
access to resources.
Widespread use of distance education does bring with it many
concerns about down-stream distribution of copyrighted materials, and
it is important to continue to incentivize development of new education
products. For these reasons, the bill includes requirements for the
distance educators to use technology to protect copyrighted materials.
Legislation works best when the interested parties can find a
workable compromise. I appreciate that this bill is the result of much
blood, sweat and tears, and I fully support the compromise. I urge my
colleagues to move this bill without amendment.
I yield back the balance of my time.
[The prepared statement of Mr. Issa follows:]
Prepared Statement of the Honorable Darrell E. Issa, a Representative
in Congress From the State of California
I am a very strong proponent of Distance Education. I believe this
type of learning will continue to grow as new technology becomes
available and more affordable to all of us.
Last year, Representative Boucher and I worked together to craft
H.R. 2000, which is the exact text of this Senate Bill 487, but with an
added exception for public libraries.
While I would like to see public libraries become more involved in
distance education, especially those serving rural areas, I realize
this bill has passed the Senate and is on the fast track for passage by
the full House. I have received some assurances that public libraries
will have protection under S. 487. I will not offer an amendment today,
but I will make certain that if public libraries are left out of
distance education, I will do all I can to remedy the situation in the
future.
Chairman Sensenbrenner. Are there amendments? If there are
not amendments, in the absence of a reporting quorum the
previous question is ordered.
[Intervening business.]
The Committee now returns to the pending unfinished
business upon which the previous question was ordered on Senate
487. The Chair notes the presence of a reporting quorum. Those
in favor of reporting the bill favorably will say aye. Opposed,
no?
The ayes appear to have it. The ayes have it and the motion
to report favorably is agreed to. Without objection, the
Chairman is authorized to move to go to conference pursuant to
House rules. Without objection, the staff is directed to make
any technical and conforming changes, and all Members will be
given 2 days, as provided by the House rules, in which to
submit additional dissenting, supplemental, or minority views.