Elements for DE Provisions

Placeholder for distance education

Elements for DE provisions:

The convergence of telecommunications, publishing, television and computing, is creating a media environment with enormous implications for distance education, flexible learning, and mass higher education and training. Access to knowledge media will increase and the globalisation of communication will permit the growth of higher education.

The use of new technologies in innovative education demands full reconsideration of the ability to use existing copyright-protected materials in distance education. One of the fundamental objectives of a

new law or treaty should be to strike a balance between protecting copyright works, while permitting educators to use those materials in DE.

Serious considerations should be given to the issues of who should be involved in the elaboration of DE law or treaty provisions. It is fundamental to include DE instructors, students and libraries as well as

policy makers and institutions.

In addition, model or exiting legislations and their analysis (in the US and EU) should be considered in order to address issues related to the cross-border nature of distance education. There is a crucial need for

for harmonization and global solutions in the field of DE.

Issues and recommendations may be organized around the following questions=

I=Materials/works that should be covered and materials/works that should not be covered.

II=Instructors, students, place and time

III=Definitions and meaning

IV=Liability of institutions for infringement?

V=Analog to Digital?

I.Material/works

Issues regarding range of allowed works. The law must permit the display and performance of nearly all types of works. The law should not sweepingly excludes broad categories of works. Only a few narrow classes of works may be excluded, and uses of only a few types of works can be subject to quantity limitations. Displays of any type of work including dramatic works, performances of audiovisual materials and sound recordings.

Recommendation: The law must explicitly permit:

=Performances of nondramatic literary works;

=Performances of nondramatic musical works;

=Performances of any other work, including dramatic works and audiovisual works, but only in ”reasonable and limited portions” and

=Displays of any work “in an amount comparable to that which is

typically displayed in the course of a live classroom session.

Excluded works must be limited to:

Works that are marketed “primarily for performance or display as part of mediated instructional activities transmitted via digital networks”; and

=Performances or displays given by means of copies “not lawfully made and acquired” (under the country's Copyright Act), if the educational institution “knew or had reason to believe” that they were not lawfully

made and acquired.

The first of these limitations is clearly intended to protect the market for commercially available educational materials.

II.Teachers, students, place and time

Issues: The DE law should not include unreasonable formalities (as in the Teach Act in the US).

Recommendation: Instructors should be able to access materials with a blanket license. Reasonable remuneration to copyright owners should apply.

Recommendation: The benefits of the DE Law should not apply only to a limited type of education institutions or programs. In the case of post-secondary education, an institution may be recognized by the

applicable authorities of the countries. In developing countries, many private entities, such as for-profit subsidiaries of nonprofit institutions may not be duly =93accredited=94but should qualify and benefit

from the DE Law.

Recommendation: Expansion of receiving locations. The law must not limit the transmission of content to classrooms and other similar location. The law should have no such constraint. Educational institutions must be able to reach students through distance education at any location.

Issue: Storage of transmitted content.

Recommendation: The law must permit educational institutions to record and retain copies of the distance-education transmission, even if it included copyrighted content owned by others. The law must also

explicitly allows retention of the content and student access for a brief period of time, and it permits copying and storage that is incidental or necessary to the technical aspects of digital transmission

systems.The DE Law must explicitly exonerate educational institutions from liability that may result from most “transient or temporary storage of material.” However, the law should not allow anyone to maintain the copyrighted content “on the system or network” for availability to the students “for a longer period than is reasonably necessary to facilitate the transmissions for which it was made” Moreover, the institution may not store or maintain the material on a system or network where it may be accessed by anyone other than the ”anticipated recipients.”

Issues: Students

Recommendation: The institution must provide notice to students that materials used in connection with the course may be subject to copyright protection. It may be be a brief statement simply alerting the reader to copyright implications.

Recommendation: Enrolled students. The transmission of content must be made solely for students officially enrolled in the course for which the transmission is made. The law may ask the institution to limit the transmission to students enrolled in the particular course “to the extent technologically feasible.” Therefore, the institution may need to create a system that permits access only by students registered for that specific class. As a practical matter, the statute may lead educational institutions to implement technological access controls that are linked to enrollment records available from the registrar’s office. Note that in the US, the DE law requires that the technological controls be "reasonable." In other words, do your best, and keep checking for the latest innovations. Developing countries should not go further.

Issues: need for repeated access.

Recommendation: the law must explicitly allow for repeated access if it is necessary to meet teaching objectives. For example, if an instructor has properly included a clip of a copyrighted work in one "class

session" as part of his online course, students should be able to continue to access that session repeatedly throughout the semester or other term of the course. In addition, if the instructor wants to re use the clip for another term (or any academic period) the law must permit the use.

III.Definitions and meaning

Issues: RE definition of "mediated instructional activities". One of the most difficult part of a DE law is to determine that performances and displays, involving a “digital transmission,” must be in the context of “mediated instructional activities.” It means that the uses of materials in the program must be ”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 point is to prevent an instructor from including, in a digital transmission, copies of materials that are specifically marketed for and meant to be used by students outside of the classroom in the traditional teaching model. For example, should the law attempt to prevent an instructor from scanning

and uploading chapters from a textbook in lieu of having the students purchase that material for their own use. There are some agreement even among educators that the law should protect the market for materials

designed to serve the educational marketplace. But it is not entirely clear if the treatment of other materials that might ordinarily constitute handouts in class or reserves in the library.

My recommendation would be to have a general provision allowing displays of materials in a quantity similar to that which would be displayed in the live classroom setting (“mediated instructional activity”) allowing occasional, brief handouts including entire short works.

In the definitions, language such as: “Mediated instructional activities means activities that use works as an integral part of the classroom experience and under the control or supervision of an instructor”.

IV.Liability of institutions for infringement

Issues RE Educational content. Liability issues for educational institutions should not lead to lack of freedom or choice for instructors etc...(chilling effect). The DE law should explicitly

address the issue. Any suggestions?

V.Analog to Digital

Issues RE Digitizing of analog works. In order to facilitate digital transmissions, the law must permit digitization of some analog works if the work is not already available. Language such as:

The institution or the instructor may decide to convert from analog to digital the portion or amount of that work authorized if there is no digital version of a work is available to the institution or if the digital version that is available is subject to technological measures that prevent its use for distance education