Statement of Marybeth Peters
The Register of Copyrights
Senate Committee on the Judiciary
United States Senate
107th Congress, 1st Session
March 13, 2001
Technology, Education and Copyright Harmonization (“TEACH”)
Act (S. 487)
The Copyright Office is pleased to present its views on S. 487, the Technology,
Education and Copyright Harmonization ("TEACH") Act. This important legislation
updates sections 110(2) and 112 of the Copyright Act to allow the same activities
to take place using digital delivery mechanisms that were permitted under
the policy balance that was struck by Congress when the law was enacted in
1976, while introducing safeguards to minimize the additional risks to copyright
owners that are inherent in exploiting works in a digital format.
Section 403 of the DMCA directed the Copyright Office to consult with affected parties
and, within six months of the date of enactment, make recommendations to Congress on how to
promote distance education through digital technologies. The 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, 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 use of 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 eligibility for any exemption and other issues as appropriate.
At the conclusion of an intensive process of identifying stakeholders, holding
public hearings, soliciting comments, conducting research, and consulting with
experts in various fields, the Office issued a Report
on Copyright and Digital Distance Education in May, 1999 recommending changes
to the existing exemption for distance education, section 110(2). More recently,
the Copyright Office has consulted informally with representatives of the educator
and content communities to hear their respective concerns regarding the Office's
In preparing our Report we found that digital distance education was a field that was
undergoing rapid - even explosive - growth, but one that was still in its infancy. Technological
change had made it possible for educators to reach a vastly broader student population with a
richer variety of course materials than was ever possible before the advent of the Internet. At the
same time, the same technological changes created a huge potential market for creators and
publishers to license their works for use in distance education.
Part of the challenge for this Office in formulating recommendations addressing digital
distance education was to remove technologically obsolete legal provisions as an impediment to
carrying forward the distance education activities sanctioned by Congress in 1976 into the twenty-first century, without killing a nascent and potentially important market for right holders. We
concluded that this could best be accomplished by using the policy line drawn by Congress in
1976 as the point of reference for a technological updating of section 110(2) that would take
account of the nature and capabilities of digital networks.
At the same time, the Copyright Office was mindful of the risks that are inherent in the
exploitation of copyrighted works in digital form. We concluded that additional safeguards were
necessary to minimize the risk to right holders that legitimate use of works under an expanded and
updated distance education exemption could result in copyright piracy.
S. 487 incorporates many of the recommendations that we made in our 1999 Report,
modified in certain instances to accommodate concerns expressed by representatives of the
affected communities. The remainder of this testimony focuses on how the bill would change
current law in implementing the recommendations from our Report. Where appropriate, we
indicate potential concerns with the language of the bill that may require further consideration.
Three exemptions together largely define the scope of permitted uses for instructional
activities: two specific instructional exemptions in section 110, and the fair use doctrine of
section 107. Sections 110(1) and (2) together were intended to cover all of the methods by which
performances or displays in the course of systematic instruction take place. Section 110(1)
exempts the performance or display of any work in the course of face-to-face teaching activities.
Section 110(2) covers the forms of distance education existing when the statute was enacted in
1976, exempting certain performances or displays in the course of a transmission - i.e., an
instructional television or radio broadcast. Both subsections contain a number of limitations and
restrictions. In particular, the section 110(2) exemption from the performance right (as
distinguished from the exemption from the display right) applies only to nondramatic literary and
musical works. Section 110(2) also contains limitations on the nature and content of the
transmission, and the identity and location of the recipients. The performance or display must be
made as a regular part of systematic instructional activity by a nonprofit educational institution or
governmental body; it must be directly related and of material assistance to the teaching content;
and it must be made primarily for reception in classrooms or places of instruction, or to persons
whose disabilities or other special circumstances prevent their attendance in classrooms, or to
In addition, although the term "transmission" as used in section 110(2) is not limited to
analog technology, and would therefore include digital transmissions, the provision would only
permit digital transmissions to the extent that they do not implicate exclusive rights other than the
public performance and public display rights. Since the reality of digital technology is that most
digital transmissions entail reproduction and distribution (as those terms are defined in the
copyright law and interpreted by the courts), the practical outcome is that most digital
transmissions are not exempted under section 110(2).
Analysis of the Bill
Section 2. Exemption of Certain Performances and Displays for Educational
Scope of the exemption
Section 2 of the bill amends the chapeau paragraph of 17 U.S.C. 110(2), altering the scope
of the exemption by expanding both the rights and the categories of works that are covered.
Unlike the analog transmissions contemplated in the current law, digital transmissions
implicate the reproduction and distribution rights in addition to the public performance and public
display rights. The making of temporary reproductions is an integral part of the technology of
transmitting digital data from one point to another. It is settled case law in the U.S. that such
temporary reproductions implicate the reproduction right. Similarly, courts have held that such
activity can be deemed a distribution as well. In order to address these technological realities, the
bill amends section 110(2) to cover the rights to reproduce a work "in transient copies or
phonorecords created as a part of the automatic technical process of a digital transmission"
permitted under section 110(2), and to distribute "such copies or phonorecords" in the course of a
digital transmission authorized by section 110(2), "to the extent technologically necessary to
transmit the performance or display."
The expansion of the 110(2) exemption to cover these two additional rights is phrased
very narrowly in order to avoid changing the central character of section 110 from an "exemption
of certain performances and displays" to an exemption permitting the delivery of copies or
phonorecords that substitute for the purchase by the student of the materials performed or
displayed. As amended, section 110(2) would permit reproduction and distribution only to the
extent technologically required in order to transmit the performance or display permitted by the
In our informal consultations with the educator community, concern was expressed that
the exemptions from the reproduction and distribution rights were too limited for an institution to
be able to carry out a permitted transmission without potential liability. As the originator of the
transmission, an institution could potentially be liable for any reproduction that occurs along the
transmission path from the institution's server to the student's personal computer. Although
many of the copies would fall within the scope of the proposed exemption, it is inevitable that
some copies, such as cache copies in an Internet service-provider's proxy cache or a user's
browser cache, would be made, but would not be considered "transient," would not be
"technologically necessary to transmit the performance or display" and would not, as required in
proposed section 110(2)(D), be "retained for no longer than reasonably necessary to complete the
transmission." Apart from initiating the transmission, the institution has no role in the making and
retention of such copies, and is powerless to prevent them. The copies are simply a by-product of
how the technology works today. But they do not fall within the scope of the exemption
provided in the bill, and they could result in potential liability for the institution.
These concerns appear to be valid, and merit further consideration. We would be pleased
to continue to work with the Committee and the affected parties to craft language to address
Content owners have expressed concern about the existing exemption from the public
display right as applied to digital distance education. Specifically, they are concerned that
permitting the display of entire literary works in the context of digital distance education has a
much greater impact on copyright holders than permitting the display of entire works for purposes
of instructional broadcasting. "Display" of a book using the technology of distance education in
1976 meant showing it - holding it up for the camera to see. Display of a book using today's
technology means making the entire work available digitally. The technology of 1976 did not
make it possible for the display of a textbook to substitute for its purchase, but the technology of
The exemption from the copyright owner's exclusive right to display the work publicly
would permit both activities. The Copyright Act defines "display" of a work as showing a copy
of a work either directly or by means of "any other device or process." To display a work
"publicly" is to display "to the public, by means of any device or process, whether the members of
the public capable of receiving the performance or display receive it in the same place or in
separate places and at the same time or at different times." Holding a book up to a camera or
using an e-book through an online delivery system both fall comfortably within these definitions.
Nevertheless, in the view of the content community, Congress, in exempting entire works
from the display right in 1976, did not intend to permit uses that were more extensive than those
that were possible under the technology of the time. Congress certainly did not intend that an
exempted display of a textbook under section 110(2) be capable of substituting for the purchase
of that book, as today's technology makes possible.
We believe that these observations of the content community are essentially correct, but it
is our view that their concerns are addressed by the limitation of permitted displays in amended
section 110(2)(A) to those made "as an integral part of a class session." Even though "class
session" arguably has less strictly defined parameters in a digital network environment than it does
in other contexts, the Copyright Office does not view the concept as being entirely devoid of
meaning. For example, the display of an entire textbook could not take place in the course of a
class session and would not be exempted conduct under the scope of an updated section 110(2).
The technology of 1976 made it impossible for the display of a textbook to substitute for its
purchase. Although today's digital technology would make it possible to display an entire book,
the limitation that was once inherent in the technology is carried forward through the concept of a
The other expansion of the scope of the exemption accomplished by the bill is to allow
performances of categories of copyrighted works other than the nondramatic literary and musical
works that already may be performed under current law. This provision implements a
recommendation in our Report that recognized that educators preparing course material do not
differentiate in the selection of subject matter based upon the categories of works in section 102
of the Copyright Act, and that current technology permits educators to recreate through distance
education the same rich pedagogical experience enjoyed face-to-face with students in a classroom
setting. Section 110(1) of the Act permits the use of any work in a face-to-face classroom
However, as our Report also recognized, the potential impact on secondary markets for
the principal categories of works that are affected by this expansion - audiovisual works, sound
recordings, and dramatic literary and musical works - could be substantial. Transmission of
entertainment products like motion pictures and sound recordings could well substitute for
students paying to enjoy them elsewhere. The bill addresses this concern by limiting performance
of the newly-added categories of works to "reasonable and limited portions."
It should be noted that when the current 110(2) exemption was enacted in 1976, there was
no public performance right that covered sound recordings (a limited public performance right for
sound recordings which covers only certain digital transmissions was enacted in 1995).
Consequently, there was no need to address the appropriate treatment of sound recordings in the
discussions leading to the enactment of the current section 110(2) exemption. The Copyright
Office, however, regards sound recordings to be as vulnerable to the risks of downstream digital
distribution as audiovisual works, which militates against permitting anything but "reasonable and
limited" portions of those works to be used under the exemption.
Works that are produced primarily for instructional use may be neither performed nor
displayed under the exemption, because for such works, unlike entertainment products or
materials of a general educational nature, an exemption would cut significantly into primary
markets, impairing incentives to create. Including such works within the exemption would
interfere with the efficient functioning of the marketplace for licenses. As we stated in our
Report, we believe that under current conditions, works created primarily for instructional uses
will be licensed efficiently in the educational market.
As an additional safeguard, this provision requires that the exempted performance or
display be made from a copy both lawfully made and lawfully acquired.
Criteria for eligibility
Section 110(2) currently contains several criteria which must be met for a performance or
display to qualify for the exemption. These criteria relate to the identity of the transmitting
institution and the nature of the activities of which the performance or display is a part; the nature
of the performance or display; and the identity and location of the recipients of the transmission.
Section 2 of the bill amends the existing criteria to update them and make them relevant to
distance education as it is carried out on digital networks. The bill also adds additional criteria as
additional safeguards against digital piracy.
Except in fairly limited circumstances, transmissions under the current provision must be
made to students in a physical classroom. The bill eliminates the requirement of a physical
classroom by permitting transmissions to be made to students officially enrolled in the course and
to government employees, regardless of their physical location. The bill retains the current
limitation in section 110(2)(B) that the performance or display be "directly related and of material
assistance to the teaching content of the transmission" and, in lieu of limiting transmissions to a
physical classroom, adds two additional safeguards.
First, section 110(2)(A), as amended by the bill, emphasizes the concept of mediated
instruction by mandating that the exempted performance or display be analogous to the type of
performance or display that would take place in a live classroom setting. The performance or
display must still be carried out by a government body or nonprofit educational institution, and
must still be a regular part of the institution's systematic instructional activities. In addition, the
bill requires that the transmission be made "by or at the direction of an instructor as an integral
part of a class session." In sum, the work must be used as an integral part of a classroom
experience (albeit a virtual one), controlled by the instructor, rather than as supplemental or
background information to be experienced independently.
Content owners have expressed to the Copyright Office their concern that "nonprofit
educational institution" may not be the appropriate dividing line between institutions that may and
may not use the exemption, since institutions that are not bona fide educational institutions may
enjoy nonprofit status. They have proposed that the word "accredited" be added as an additional
qualification. The Office views this as a valid concern. We are uncertain, however, whether lack
of accreditation is necessarily an appropriate basis for denying an institution the benefit of the
exemption, or, conversely, whether accreditation is an appropriate basis for granting an institution
the benefit of the exemption. This is especially true given the lack of uniform national standards
for accreditation, and the resulting geographic inequity of such a condition. However, the
Committee should consider whether another criterion, in addition to an institution's nonprofit
status, could be used to limit the benefit of the exemption to bona fide educational institutions.
The second safeguard introduced in lieu of limiting transmissions to a physical classroom
is found in section 110(2)(C), as amended by the bill. This provision adds the requirement that
the transmission must be made solely for, and, to the extent technologically feasible the reception
of the transmission must be limited to, two defined classes of eligible recipients: students officially
enrolled in the course for which the transmission is made; and officers or employees of
governmental bodies as part of their official duties of employment. When we prepared our Report
there was widespread agreement, in the testimony and comments submitted to the Office, that the
exemption should benefit only students officially enrolled in the particular course for which the
transmission is made. The bill requires, to the extent technologically feasible, that technical
measures be employed to ensure this.
Section 2 of the bill also adds new safeguards to counteract the new risks posed by the
transmission of works to students in digital form. A new paragraph (D) requires that transient
copies permitted under the exemption be retained no longer than reasonably necessary to
complete the transmission. As discussed above in reference to the chapeau paragraph of section
110(2), concerns have been expressed to the Office regarding the possible retention of copies that
are created automatically in the course of the transmission and are outside the control of the
transmitting institution "for longer than reasonably necessary to complete the transmission."
Further consideration should be given to this criterion to ensure that copies made and retained as
an automatic by-product of the transmission process do not render a transmission ineligible for the
Paragraph (E)(i) requires that beneficiaries of the exemption institute policies regarding
copyright; provide information materials to faculty, students, and relevant staff members that
accurately describe and promote compliance with copyright law; and provide notice to students
that materials may be subject to copyright protection. These requirements would promote an
environment of compliance with the law, ensure that participants in the instructional process were
aware of their responsibilities in using copyrighted material, and prevent unintentional and
uninformed acts of infringement.
Paragraph (E)(ii) requires that the transmitting institution apply measures "that reasonably
prevent unauthorized access to and dissemination of the work," and that the institution "not
intentionally interfere with technological measures used by the copyright owner to protect the
work." These requirements reflect the central role that the use of technological measures plays in
the balance that has been struck in this bill.
A number of concerns have been expressed to the Copyright Office regarding this
provision. The educator community has pointed out that requiring institutions to apply measures
that reasonably prevent access to a work essentially repeats the requirement that the transmission
be "made solely for, and to the extent technologically feasible, the reception of such transmission
[be] limited to" the intended recipients. This may be a valid concern that should be given further
Content owners, for their part, have expressed concern about the use of the word
"intentionally" in the context of interfering with technological measures used by the copyright
owner. Subjective intent is difficult to prove, and could render the requirement of noninterference
meaningless. This appears to be a valid concern that merits further consideration. Specifically,
the Committee may wish to consider substituting an objective standard for the current subjective
one - e.g., "does not engage in conduct that could reasonably be foreseen to interfere with
It has also been suggested that language derived from 17 U.S.C. 512(i) be added to this
paragraph (or as a new paragraph) to require both noninterference with and accommodation of
"standard technical measures" in order to be eligible for the exemption. While the requirement in
the bill of noninterference with a copyright owner's technological protection measures coupled
with existing prohibitions on circumvention of access control measures in 17 U.S.C. 1201 should
provide a substantial level of protection for right holders, it is possible that the case could be made
for inclusion of the stricter obligation in section 512(i).
Section 3. Ephemeral Recordings
Section 3 of the bill amends 17 U.S.C. 112 by adding a new subsection which permits an
educator to upload copies of a copyrighted work onto a server solely to facilitate transmissions
permitted under section 110(2). Limitations have been imposed upon the exemption similar to
those set out in other subsections of section 112. Paragraph 112(f)(1) specifies that any such
copy be retained and used solely by the entity that made it and that no further copies be
reproduced from it except the transient copies permitted under section 110(2). Paragraph
112(f)(2) requires that the copy be used solely for transmissions authorized under section 110(2).
Paragraph 112(f)(3) prohibits a body or institution from intentionally interfering with
technological protection measures used by the copyright owner to protect the work.
The exemption only applies to "a work that is in digital form." Consequently, it is not
possible under the proposed subsection to scan a literary work, or otherwise convert a work to
digital form. Use of works in digital form on the Internet bears well-documented risks for right
holders. Some right holders may choose not to expose themselves to that risk by refraining from
"going digital." This exemption is not intended to force those right holders to "go digital" against
In our Report, we recommended that section 112 be amended to allow a single ephemeral
recording to carry out a transmission permitted under section 110(2). However, the technology
of digital streaming requires that more than one ephemeral copy be maintained on a server.
Consequently, we support the bill's expansion of the ephemeral recording exemption to include
multiple copies. It is the view of the Copyright Office that the safeguards built into the proposed
subsection, including the extremely limited purposes for which ephemeral recordings may be used,
provide adequate assurance that the additional copies authorized by the subsection will not have
any measurable impact on content owners.
Section 4. Implementation
by Copyright Office
Subsection (a) states that not later than two years after the date of enactment of this Act,
the Copyright Office shall conduct a study and submit a report to Congress on the status of
licensing by private and public educational institutions of copyrighted works for digital distance
education programs, including live interactive distance learning classes, faculty instruction
recorded without students present for later transmission, and asynchronous delivery of distance
learning over computer networks, and also on the use of copyrighted works in such programs.
We caution that much of this information is considered proprietary and will be difficult to obtain.
Although such a eport could be very valuable to the Committee to the extent that empirical
evidence can be obtained, this may not be possible in many instances.
Subsection (b) requires the Copyright Office, not later than two years after the date of
enactment, to convene a conference of interested parties, including representatives of copyright
owners, nonprofit educational institutions and nonprofit libraries and archives to develop
guidelines for the use of copyrighted works for digital distance education under the fair use
doctrine and sections 110(1) and (2). The conference would initiate a process that has as its goal
the promulgation by the Copyright Office of guidelines for the fair use of copyrighted works in
digital distance education.
The Copyright Office believes that fair-use guidelines for particular areas of activity have
proved useful in the past, and digital distance education is an area where development of new
guidelines certainly would be appropriate. We support such a Congressionally-mandated process
to establish fair-use guidelines for digital distance education. Since guidelines do not have the
force of law, their success in practice depends largely on the degree to which interested parties
endorse them. A strong message from the Congress to the affected parties that guidelines are
desirable, as evidenced by subsection (b), could play a pivotal role in the eventual success of such
The Copyright Office is concerned, however, about the inclusion of sections 110(1) and
(2) as subjects for the guidelines, as they are specific exemptions with delineated parameters. The
Office would propose that these sections be removed from the scope of the conference and
addressed through informational materials of the type regularly issued by the Copyright Office.
The Copyright Office supports this legislation to carry out the recommendations made in
its 1999 Report. We look forward to continuing to work with the Committee in this important