Copyright: a challenge to distance learning, part 3

Information Outlook, Dec, 1998 by Laura N. Gasaway

Distance learning courses are offered not only by nonprofit educational institutions but also by for-profit entities such as corporations and schools organized for profit. As we've learned from past columns, distance learning courses can encounter general copyright problems and there are several issues surrounding Internet delivery of courses by nonprofit educational institutions. Similarly, there are also certain copyright issues that courses and programs offered by the for-profit sector encounter - specifically involving reproduction of materials for students and performance and display of works. Nonprofit educational institutions face the same problems when their uses of copyrighted works is not exempted by the Act or if the use exceeds fair use. Many of the exemptions in the Copyright Act for education are limited not only to nonprofit education but to nonprofit educational institutions. Thus, commercial providers are more likely to find that their activities require permission to use copyrighted works.

Distribution of Materials for Students

Many for-profit providers of distance education courses produce their own materials for distribution to students. Others rely on published textbooks that the students purchase. But often they either supplement this material with reproductions of articles, chapters, and the like, or all of the materials for the course could be reproductions.

One of the exemptions for nonprofit educational institutions is found in the classroom guidelines that permit the reproduction of copyrighted works under certain conditions for distribution to students in a class. Earlier columns discussed whether Internet distribution of materials might be permitted, but clearly there is no exemption for commercial providers of distance education. Thus, they must seek permission to distribute copies of materials for courses and pay royalties if requested unless the use if a fair use. Because of the commercial nature of such courses and the effect on the publishers' right to license the use of their works for photocopying [see Texaco, 37 F.3d 881 (2d Cir. 1994)], distribution of reproductions of copyrighted works are not likely to be fair uses.

The Copyright Clearance Center (CCC) provides a mechanism to seek permission and pay royalties for providing materials to students in the form of coursepacks. The Academic Permissions Service is available whether students are on-campus or at a distance. The Academic Permissions Service is available to both for-profit providers and for nonprofit providers that pay fees for coursepacks. Royalty fees are set by the copyright holder and are based on the number of copies distributed.

The CCC recently has established the Electronic Course Content Service to cover electronic copies of copyrighted works for educational courses. This includes both electronic reserves and course materials such as electronic coursepacks. Whether the student is accessing the material on a campus or at a distance is irrelevent. Royalty fees are set in much the same way as they are for the Academic Permissions Service.

Performance and Display of Copyrighted Works

Distance learning courses often perform or display portions of copyrighted works or even entire works. Section 110(2) of the Copyright Act exempts displays of works and the performance of nondramatic literary and musical works under certain conditions. One of these conditions is that the performance or display be part of systematic instruction for a nonprofit educational institution or government agency.

Clearly, a commercial entity does not qualify for this exemption. Thus, for a performance of more than a de minimis portion or a copyrighted work, a for-profit distance education entity must seek permission for performing the work and pay royalties. Often copyright holders will license distance learning providers for the repeated performance of their works. Almost always, the copyright owner will require that the provider have a way to limit access to their works such as making them available only to enrolled students.

Because the statutory exemptions do not exist for commercial providers, such providers need to establish good systems for seeking and managing permissions. While the CCC can be of tremendous assistance, the distance education provider will have to deal directly with many copyright holders especially for performance and display rights. In establishing these systems, commercial entities should allow ample time for seeking permission.

Laura N. Gasaway. Lolly Gasaway is chair of SLA's Copyright Committee. For more information on Copyright Corner or to contribute to the column, please contact Gasaway (laura_gasaway@unc.edu).