Floor Statement on the
Technology, Education, and Copyright Harmonization Act of 2001

June 8, 2001

Mr. President, I am pleased that the Senate is considering the TEACH Act, S. 487, today. This legislation will help clarify the law and allow educators to use the same rich material in distance learning over the Internet that they are able to use in face-to-face classroom instruction. The Senate has been focused on education reform for the past two months. The legislation we report today reflects our understanding that we must be able to use new technologies to advance our education goals in a manner that recognizes and protects copyrighted works.

The genesis of this bill was in the Digital Millennium Copyright Act (DMCA), where we asked the Copyright Office to study the complex copyright issues involved in distance education and to make recommendations to us for any legislative changes. The Copyright Office released its report in May, 1999, and made valuable suggestions on how modest changes in our copyright law could go a long way to foster the appropriate use of copyrighted works in valid distance learning activities. Senator Hatch and I then introduced the TEACH Act, S. 487, relying heavily on the legislative recommendations of that report.

Marybeth Peters, the Registrar of Copyrights, and her staff deserve our heartfelt thanks for that comprehensive study and their work on this legislation.

At the March 13, 2001, hearing on this legislation, we heard from people who both supported the legislation and had concerns about it. I appreciate that some copyright owners disagreed with the Copyright Office’s conclusions and believed instead that current copyright laws are adequate to enable and foster legitimate distance learning activities. We have made efforts in refining the original legislation to address the valid concerns of both the copyright owners and the educational community. This has not been an easy process and I want to extend my thanks to all of those who worked hard and with us to craft the legislation reported by the Judiciary Committee and considered by the Senate today.

The growth of distance learning is exploding, largely because it is responsive to the needs of older, non-traditional students. The Copyright Office ("CO") report noted two years ago that, by 2002, the number of students taking distance education courses will represent 15 percent of all higher education students. Moreover, the typical average distance learning student is 34 years old, employed full-time and has previous college credit. More than half are women. In increasing numbers, students in other countries are benefitting from educational opportunities here through U.S. distance education programs. (CO Report, at pp. 19-20).

In high schools, distance education makes advanced college placement and college equivalency courses available -- a great opportunity for residents in our more-rural states. In colleges, distance education makes lifelong learning a practical reality.

Not only does distance education make it more convenient for many students to pursue an education, for students who have full-time work commitments, who live in rural areas or in foreign countries, who have difficulty obtaining child or elder care, or who have physical disabilities, distance education may be the only means for them to pursue an education. These are the people with busy schedules who need the flexibility that on-line programs offer: virtual classrooms accessible when the student is ready to log-on.

In rural areas, distance education provides an opportunity for schools to offer courses that their students might otherwise not be able enjoy. It is therefore no surprise that in Vermont, and many other rural states, distance learning is a critical component of any quality educational and economic development system. The most recent Vermont Telecommunications Plan, which was published in 1999, identifies distance learning as being critical to Vermont’s development. It also recommends that Vermont consider "using its purchasing power to accelerate the introduction of new [distance learning] services in Vermont." Technology has empowered individuals in the most remote communities to have access to the knowledge and skills necessary to improve their education and ensure they are competitive for jobs in the 21st Century.

Several years ago, I was proud to work with the state in establishing the Vermont Interactive Television network. This constant two-way video-conferencing system can reach communities, schools and businesses in every corner of the state. Since we first successfully secured funds to build the backbone of the system, Vermont has constructed fourteen sites. The VIT system is currently running at full capacity and has demonstrated that in Vermont, technology highways are just as important as our transportation highways.

No one single technology should be the platform for distance learning. In Vermont, creative uses of available resources have put in place a distance learning system that employs T-1 lines in some areas and traditional internet modem hook-ups in others. Several years ago, the Grand Isle Supervisory Union received a grant from the U.S. Department of Agriculture to link all the schools within the district with fiber optic cable. There are not a lot of students in this Supervisory Union but there is a lot of land separating one school from another. The bandwidth created by the fiber optic cables has not only improved the educational opportunities in the four Grand Isle towns, but it has also provided a vital economic boost to the area's businesses.

While there are wonderful examples of the use of distance learning inside Vermont, the opportunities provided by these technologies are not limited to the borders of one state, or even one country. Champlain College, a small school in Burlington, Vermont has shown this is true when it adopted a strategic plan to provide distance learning for students throughout the world.. Under the leadership of President Roger Perry, Champlain College now has more students

enrolled than any other college in Vermont. The campus in Vermont has not been overwhelmed with the increase. Instead, Champlain now teaches a large number of students overseas through its on-line curriculum. Similarly, Marlboro College in Marlboro, Vermont, offers innovative graduate programs designed for working professionals with classes that meet not only in person but also online.

The Internet, with its interactive, multi-media capabilities, has been a significant development for distance learning. By contrast to the traditional, passive approach of distance learning where a student located remotely from a classroom was able to watch a lecture being broadcast at a fixed time over the air, distance learners today can participate in real-time class discussions, or in simultaneous multimedia projects. The Copyright Office report confirmed what I have assumed for some time -- that "the computer is the most versatile of distance education instruments," not just in terms of flexible schedules, but also in terms of the material available.

More than 20 years ago, the Congress recognized the potential of broadcast and cable technology to supplement classroom teaching, and to bring the classroom to those who, because of their disabilities or other special circumstances, are unable to attend classes. We included in the present Copyright Act certain exemptions for distance learning, in addition to the general fair use exemption. The time has come to do more. The recent report of the Web-Based Education Commission, headed by former Senator Bob Kerrey, says:

Current copyright law governing distance education . . . was based on broadcast models of telecourses for distance education. That law was not established with the virtual classroom in mind, nor does it resolve emerging issues of multimedia online, or provide a framework for permitting digital transmissions." (p. 95).

The Kerrey report concluded that our copyright laws were "inappropriately restrictive." (p. 97).

Under current law, the performance or display of any work in the course of face-to-face instruction in a classroom is exempt from the exclusive rights of a copyright owner. In addition, the copyright law allows transmissions of certain performances or displays of copyrighted works but restricts such transmissions subject to the exemption to those sent to a classroom or a similar place which is normally devoted to instruction, to persons whose disabilities or other special circumstances prevent classroom attendance, or to government employees. While this exemption is technology neutral and does not limit exempt "transmissions" to distance learning broadcasts, the exemption does not authorize the reproduction or distribution of copyrighted works – a limitation that has enormous implications for transmissions over computer networks. Digital transmissions over computer networks involve multiple acts of reproduction as a data packet is moved from one computer to another.

The TEACH Act makes three significant expansions in the distance learning exemption in the Copyright Act, while minimizing the additional risks to copyright owners that are inherent in exploiting works in a digital format. First, the bill eliminates the current eligibility requirements for the distance learning exemption that the instruction occur in a physical classroom or that special circumstances prevent the attendance of students in the classroom. At the same time, the bill would maintain and clarify the requirement that the exemption is limited to use in mediated instructional activities of governmental bodies and accredited non-profit educational institutions.

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, the current distance learning exemption only permits the transmission of the performance of "non-dramatic literary or musical works," but does not allow the transmission of movies or videotapes, or the performance of plays. The Kerrey Commission report cited this limitation as an obstacle to distance learning in current copyright law and noted the following examples: A music instructor may play songs and other pieces of music in a classroom, but must seek permission from copyright holders in order to incorporate these works into an online version of the same class. A children’s literature instructor may routinely display illustrations from childrens’ books in the classroom, but must get licenses for each one for on online version of the course. (p. 96).

To alleviate this disparity, the TEACH Act would amend current law 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 nondramatic literary and musical works which are currently exempted.

This legislation is a balanced proposal that expands the educational use exemption in the copyright law for distance learning, but also contains a number of safeguards for copyright owners. In particular, the bill excludes from the exemption those works that are produced primarily for instructional use, because for such works, unlike entertainment products or materials of a general educational nature, the exemption could significantly cut into primary markets, impairing incentives to create. Indeed, the Web-Based Education Commission urged the development of "high quality online educational content that meets the highest standards of educational excellence." Copyright protection can help provide the incentive for the development of such content.

In addition, the bill requires that the government or educational institution using the exemption transmit copyrighted works that are lawfully made or acquired and use technological protection safeguards to protect against retention of the work and ensure that the dissemination of material covered under the exemption is limited only to the students who are intended to receive it.

Finally, the bill directs the Patent and Trademark Office to report to the Congress with a description of the various technological protection systems in use, available, or being developed to protect digitized copyrighted works and prevent infringement, including those being developed in private, voluntary, industry-led entities through an open broad based consensus process. The original version of this study proposed by Senator Hatch in an amendment filed to the Elementary and Secondary Education bill, S. 1, proved highly controversial.

I appreciate that copyright owners are frustrated at the pace at which technological measures are being developed and implemented to protect digital copyrighted works, particularly as high-speed Internet connections and broadband service becomes more readily available. At the same time, computer and software manufacturers and providers of Internet services are appropriately opposed to the government mandating use of a particular technological protection measure or setting the specification standards for such measures. Indeed, copyright owners are a diverse group, and some owners may want more flexibility and variety in the technical protection measures available for their works than would result if the government intervened too soon and mandated a particular standard or system. I am glad that with the constructive assistance of Senator Cantwell and other members of the Judiciary Committee, we were able to include a version of the PTO study in the bill that is limited to providing information to the Congress.

Distance education is an important issue to both Senator Hatch and to me, and to the people of all of our States. This is a good bill and I urge the Congress to act promptly to see this legislation enacted.