From the issue dated March 28, 2003
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Slow Start for Long-Awaited Easing of Copyright RestrictionBy DAN CARNEVALEDeborah K. Griggs used movie clips in her courses on intercultural
While watching the 1991 American movie Father of the Bride, students in her classroom could easily tell that Steve Martin's character was jealous of his future son-in-law for stealing his daughter's heart. While watching the Indian film West Is West, however, students couldn't as easily read the main character's expressions as he made his way around San Francisco. Now that Ms. Griggs teaches the same course online through University of Maryland University College, however, she skips the movie clips. Until recently, U.S. copyright law barred online courses from using such materials unless the copyright holder had given permission -- possibly after demanding a hefty royalty -- a step that isn't required for professors using such material in a traditional classroom setting. "It just takes so much time, so I never bothered," she says. In November, President Bush signed into law a bill that aims to help faculty members like Ms. Griggs by loosening the restrictions on using copyrighted works in online education. The bill, the Technology Education and Copyright Harmonization Act, amended copyright law to permit professors, under certain circumstances, to use some of the same copyrighted works in online courses that they have used in traditional ones, free of charge and without having to ask permission first. Congress approved the measure with support from both colleges and copyright owners. But few faculty members around the country are taking advantage of the new law, known as the Teach Act. Faculty members and administrators say it is too complex and too vague about the conditions under which they can put copyrighted works online. Indeed, confusion over the new law has entire institutions applying the brakes. For example, North Carolina State University and Pennsylvania State University are not putting any new copyrighted content in online courses until questions about the law's provisions are resolved. "I have to admit, I can get pretty confused with what you can and can't do," says Joseph J. Branin, director of libraries at Ohio State University. What the Law Allows The act permits nonprofit, accredited institutions of higher education to place online the full texts of "nondramatic" written works, such as news articles and poetry, as well as portions of "dramatic" works, such as plays and movies. As long as the materials are being used for courses, the institutions need not get the copyright holders' permission or pay royalties. Avoiding royalties is a big attraction, especially for colleges that have been paying to use copyrighted materials online. For example, Bellevue Community College, near Seattle, pays $50 to $100 for each article from National Geographic that it posts online; Eastern University, near Philadelphia, pays about $5 each for articles from Fortune Magazine. The fees add up: Copyright works for its online courses cost University of Maryland University College about $200,000 a year, which it would not have to pay under the Teach Act. But as the saying goes, certain restrictions apply -- more than a few, in fact. The law requires that institutions develop written copyright policies before they can put more copyrighted material online. Professors and relevant staff members must be educated about copyright law. Students have to be given proper notice that the material is protected by copyright. The copyrighted material can appear online only for the length of time that it is needed for the course. Only students enrolled in the course can have access to the material. (Supplemental material transmitted online as part of traditional classroom courses is covered by other parts of copyright law.) One of the law's most problematic requirements is that instructors make "reasonable" efforts to prevent students' disseminating the audio or video clips to others. Although the music-sharing software company Napster has been put out of business, second-generation peer-to-peer networks like KaZaA allow people to make digital copies of popular songs and movies without paying a cent to the copyright owners. Those networks are wildly popular among college students. Even so, Maryland's Ms. Griggs wonders whether it's really necessary to guard against students' disseminating the kinds of online materials that are used in courses. After all, she says, few students would bother pirating a silent, 30-second clip of Father of the Bride. "They can download the whole movie from the Net if they like," she notes. An associate professor of English and communication, Ms. Griggs works in Germany; most of her students are in the military and are taking online courses at American bases there, where U.S. law prevails. Searching for Definitions A key issue for many institutions is that the Teach Act doesn't define "reasonable." Some experts believe that using password protection should suffice. Some college administrators think institutions will have to invest in technology that can track what students do with the copyrighted material after they download it -- technology that may not exist yet. The reasonable-efforts requirement poses a tough choice for colleges, says Jim Neal, vice president for information services at Columbia University. If colleges must wait for the development of technologies that limit what students can do with audio and video clips, he says, it could be years before the institutions can take advantage of the Teach Act. But if officials mistakenly assume that current technology is good enough, they could be subject to lawsuits by copyright owners. John Vaughn, executive vice president of the Association of American Universities, says some college officials are too concerned about liability. He says an institution isn't going to be liable as long as its officials can show that they made reasonable efforts to protect the material, like using passwords -- which most online courses already do. "They don't have to guarantee success," he says. Ms. Griggs says her online course on intercultural communication is password-protected. But she still isn't sure whether she'll have to use additional technology to make sure that students don't disseminate the material after they view it. "This is stuff I have to find out," she says. Allan Robert Adler, vice president for legal and governmental affairs at the Association of American Publishers, says most publishers are unlikely to sue the moment colleges begin testing the law -- unless the publishers find flagrant violations. "It's an implementation in progress," he says. "There's going to be a certain amount of experimentation in terms of what the statute allows, and that's OK." The authors of the Teach Act say it isn't difficult to apply. "The law was written through a process of extensive consultation with education institutions of all sizes and needs," says David Carle, a spokesman for one of the bill's principal sponsors, Sen. Patrick Leahy, a Vermont Democrat. "It was written to be as flexible as possible, to meet their varying needs." Some people affected by the law agree that it is workable. Laura N. Gasaway, director of the law library at the University of North Carolina at Chapel Hill, says that the language -- arrived at through compromise by the competing interests -- may seem somewhat cryptic, but that the law's requirements do not put an unreasonable burden on higher-education officials. "If we'd have our perfect bill, copyright holders wouldn't have agreed to it, and vice versa," she says. College officials hope that questions about the act will be settled soon after a few institutions begin using it, setting de facto standards for other institutions. Meanwhile, some groups are offering guidance: The American Library Association and Ken Crews, director of the copyright center at Indiana University-Purdue University at Indianapolis, have published a paper that advises what can be done under the act (http://www.ala.org/washoff/teach.html); North Carolina State University also has developed a set of guidelines for the Teach Act (http://www.lib.ncsu.edu/scc/legislative/teachkit). Still, the University of Maryland University College has decided to wait before applying the Teach Act to all of its online courses at once, but it is allowing some professors to experiment with the law. Ms. Griggs, in Germany, is one. She says she plans to put movie clips online starting this summer now that copyright law has changed. The Maryland college has put some copyrighted material online as a test, including sections of the PBS documentary Cosmos. Before the Teach Act, the college had to mail videotapes of the documentary to online students, some of whom didn't bother to mail them back. Kim Kelley, associate provost for information and library services at the university, says she is confident that, eventually, none of its professors will have to seek copyright holders' permission for course materials. "It's so time-consuming to get permission," she says. "I'm going to recommend that we go forward. If we can't do it, nobody can do it." Even the new law's supporters acknowledge that colleges are faced with a big challenge in figuring out its provisions. Each institution will have to have its lawyers and copyright experts study the law, Mr. Crews says. "The Teach Act is a significant improvement over previous law, but it's not easy to apply, and it can't be done alone," he says. Ken Salomon, a lawyer at the Washington law firm Dow, Lohnes & Albertson, helped draft the language of the law. He says he understands that some college officials are wary about incurring liability by putting copyrighted material in their online courses. But after a few months, he says, they will see that there is nothing to worry about. "It's still awfully new," Mr. Salomon says. "The word is just filtering out." A COPYRIGHT CHECKLIST FOR ONLINE COURSES Here is a guide that professors can use to see whether, under the Teach Act, they can use copyrighted material in their online courses without seeking the author's permission:
SOURCE: North Carolina State University
http://chronicle.com Section: Information Technology Volume 49, Issue 29, Page A29
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Copyright © 2003 by The Chronicle of Higher Education