Guidelines for distance learning and interlibrary loan: Doomed and more doomed

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Guidelines for Distance Learning and Interlibrary Loan:Doomed and More DoomedLaura N. GasawaySchool of Law, University of North Carolina at Chapel Hill, Chapel Hill, NC 27599. E-mail:laura_gasaway@unc.eduThe Conference on Fair Use (CONFU) was a useful forumfor discussions among librarians, educators, and userson one side and the content providers on the other. Twoparticularly thorny issues were distance learning andinterlibrary loan. Although the end result was the same ineach areano widely accepted guidelinesthe processand intermediate results were very different. Distance-learning guidelines were produced after considerablenegotiation, but they did not garner sufficient support tobe accepted as CONFU guidelines. Interlibrary loanproved even more difficult, and no agreements werereached except that it was too early to develop guide-lines on digital interlibrary loan. Thus, no interlibrary-loan guidelines were drafted as a part of the CONFUprocess.Distance LearningDistance learning is an increasingly important instruc-tional method for colleges and universities. At some newlycreated schools all courses toward a degree are offered overthe Internet or through other means of distribution (see, e.g.,California Virtual University, http://www.california.edu).Distance learning, sometimes referred to as distributedlearning, is defined most simply as instruction that occurswhen the instructor and students are not located in the sameplace. Various technologies may be employed to offer thatinstruction including passive video, audio or video confer-encing, and Internet delivery. Courses may be offered aslive, interactive courses, or as courses in which the studentconfronts the material at his or her own pace without theintervention of an instructor at regular class times. Distancelearning presented a particular challenge to the CONFUWorking Group because the existing statute (Copyright Actof 1976, 1999, 110(2)) contains many limitations on theworks that may be used and where transmission may occur.Often the line drawn by the statute defies logic and bearslittle relation to the needs of education (Crews, 1997, p.378). Further, copyright law often is an impediment todistance learning, and no one is sure to what extent fair usewill be interpreted to permit the use of such protected worksfor distributed learning (Gasaway, 1998).One of the distinctive characteristics of the distance-learning guidelines (CONFU, 1998, Appendix I) is that theyare based on a specific statute (Copyright Act of 1976, 1999,110(2)), known sometimes as Instructional Broadcast-ing, but that covers distance learning in a very narrowfashion. Section 110(1) is called the Classroom Exemp-tion (Copyright Act of 1976). It is limited to nonprofiteducational institutions, and it allows performance and dis-play of all works. The only requirements are that one isinvolved in face-to-face teaching activity in a classroom,and in the case of an audiovisual work, the copy must havebeen lawfully made. Consequently, for performances anddisplays in a classroom as part of face-to-face teaching, thestatute is very liberal. Teachers may show copyrightedvideotapes, students may act out a play, or the class maysing a copyrighted song.Regarding distance learning, however, the statute ismuch narrower. Section 110(2), which is the instructionalbroadcasting part of the statute, allows only performances ofnondramatic literary or musical works, or the display of anywork in the course of transmission (Copyright Act of 1976,1999). The scope of allowable materials is tightly limited,and all audiovisual works are barred under this statute. Ituses the term transmission, because in 1976 all anyonecould foresee was television broadcasting as some kind ofdistance learning. Section 110(2) goes on to allow that it isnot an infringement of copyright if:(A) the performance or display is a regular part of thesystematic instructional activities of a governmentalbody or a nonprofit educational institution; and 1999 John Wiley & Sons, Inc. Permission is hereby granted by thePublisher for this material only to reproduce, distribute, display, andtransmit the articles in this Perspectives section for nonprofit purposes,provided that copies are distributed for noncommercial purposes only andnot for resale or for systematic redistribution, and the author, source, andcopyright notice are included on each copy. This permission is in additionto rights granted under Sections 107, 108, and other provisions of the U.S.Copyright Act.JOURNAL OF THE AMERICAN SOCIETY FOR INFORMATION SCIENCE. 50(14):13371341, 1999 CCC 0002-8231/99/141337-05(B) the performance or display is directly related and ofmaterial assistance to the teaching content of the trans-mission; and(C) the transmission is made primarily for:(i) reception in classrooms or similar places nor-mally devoted to instruction, or(ii) reception by persons to whom the transmission isdirected because their disabilities or other specialcircumstances prevent their attendance in class-rooms or similar places normally devoted to in-struction, or(iii) reception by officers or employees of govern-mental bodies as a part of their official duties oremployment . . . (Copyright Act of 1976).Although it may sound as if there is wide latitude inSection 110(2), the statute poses several significant prob-lems when it comes to distance learning.First, the statute is counterintuitive to teachers. Why canthey in face-to-face teaching do something that they cannotdo in distance learning? This dilemma is especially acutewhen it is exactly the same course taught to exactly thesame type of students, sometimes even to a reduced numberof students. Teachers simply do not understand why itshould be different. They say, Do you really mean I haveto use different content because I cannot use a videotape? Ican use it face-to-face, but I cant use it in distance learn-ing?Second, some content owners were fixated on permittingonly portions of their works to be used. As we worked onthese guidelines, content providers stated over and overagain that they feared theft of their intellectual propertybecause students would download entire motion pictures. Iremember arguing with the counsel from Viacom, whorepeated over and over again, We do not want distance-learning students to make an entire copy of Forrest Gumpfrom a distance-learning course. I asked, Why wouldanyone do that when the movie has been on HBO, and youcould duplicate it there if you wanted a copy? Further, it isdifficult for me to think about what kind of a distance-learning course would show Forrest Gump in its entirety.Showing clips seems much more likely to me. We keptcoming back and saying to the movie people, What we arereally talking about, more than major motion pictures, arethe 20-minute videotapes on your digestive system. Butclips of those tapes will not workone needs to see theentire work. Which part of the digestive system should beomitted? If the movie is long, teachers will use only a clip.If it is an educational videotape, the entire tape is likelyused.Third, content providers feared that their material wouldbe uploaded to thousands of recipients with just a fewkeystrokes, and therefore, everybody in the world wouldhave access to this work that was disseminated using dis-tance learning. Thus, preventing downstream and transmis-sion copying was a serious concern.Accordingly, CONFU proposed distance-learning guide-lines. They are definitely complicated, and they are restric-tive, but this is because Section 110(2) is their foundation,and that statute is highly restrictive. Our approach to theguidelines was to isolate different types of distance learning,not because we thought this was the ideal way to do it, butbecause we had a great deal of difficulty understandingdistance learning and what is being offered today versuswhat would be offered in the future. One person in the groupwould be talking about videoconferencing, while the nextperson was talking about computer network delivery. Wefinally said, The only way we can approach this is toseparate the types of distance learning and work on themone at a time. We ultimately identified three types ofdistance learning. This was not easy, and each one was ahard-fought battle. The three types are: (1) live interactive,such as videoconferencing; (2) taping a live teaching ses-sion for later transmission, either with or without studentspresent; and (3) live interactive computer network delivery.The interactive piece was very critical to the copyrightholders. What we did not agree on was asynchronous com-puter network delivery. This issue was put to the side forlater consideration for several reasons. Publishers statedrepeatedly that they believe that asynchronous computernetwork delivery, such as signing onto the Web to take acourse with materials delivered at the students request, isthe equivalent of an old correspondence course. In otherwords, all of the materials for the course are provided whenyou sign on. Therefore, it is the equivalent of publishing thismaterial.Distance educators were willing to exclude asynchro-nous delivery at that time, because very little of it wasactually taking place. Colleges and universities were exper-imenting, but we could not at the time identify as many asa hundred courses across the country that used asynchro-nous delivery. The guidelines simply resolve that we need toreconsider it in three to five years, when more asynchronousdelivery would be occurring and we could identify possiblemodels. That time is swiftly approaching.Basically, the proposed guidelines (CONFU, 1998, Ap-pendix I) extend the face-to-face exemption to distancelearning. Our underlying assumption was that we needed totake the broad face-to-face exemption and make it availableto distance learning. Naturally, from the copyright holderspoint of view, we could not make this transfer wholesale.Restrictions were necessary. All copyrighted works couldbe performed in their entirety. The type of works was notrestricted despite the Section 110(2) restriction of works,and this was a big step. The guidelines permit performancesof video, movies, multimedia, anythingno restriction onthe type of works. The statute, by contrast, limits perfor-mances in distance learning to nondramatic musical andliterary works and would preclude any use of audiovisualworks.The guidelines followed the statute in some respects. Theuse must still be part of systematic instruction. Althoughsome of the legislative history of the Copyright Act refers tosystematic instruction for Section 110(1), only Section110(2) actually requires it. The performance of entire works1338 JOURNAL OF THE AMERICAN SOCIETY FOR INFORMATION SCIENCEDecember 1999definitely expands Section 110(2). In a compromise, theguidelines, in effect, concluded, Lets let the face-to-faceteaching exemption apply for the first time the course istaught by the instructor. That allows an instructor to testwhether using this videotape, or whatever, works the firsttime, and thereafter permission must be sought. This isfairly similar to the photocopy guidelines from 1976 (H.R.Rep. No. 1476, 1976), which refer to one-semester use. Mypreference would have been for us to use anything we wantto use when we want to use it, but the guidelines representnegotiation and compromise.Transmission under the guidelines is also somewhatrestricted. The guidelines allow a one-time transmission bythe faculty member without permission. The reception alsomust be limited to enrolled students. In other words, SunriseSemester (remember that old program?) would not qualify,because it is not restricted to enrolled students. The trans-mission also has to occur on a secure system that does notpermit downloading by students or at least downloading thatportion of a class containing the performance of an entirecopyrighted work. The school could still allow the course tobe copied, but it must excise performances of the copy-righted work. The receiving institution is permitted to makea copy of the entire course and retain that copy for fifteendays for student use. The institution may tape the teacherand retain the tape forever, but must cut out the performanceof Forrest Gump. An alternative would be to buy a copy ofForrest Gump and have it available for students to view.In conclusion, the momentous growth of distance learn-ing will certainly not be stopped by copyright concerns.Some institutions right now are obtaining permission foreach copyrighted work that they use in distance learning.These guidelines allow them to ease that effort and givethem the ability, at least on a one-time basis, to use an entirecopyrighted work. This is the safe harbor. Other institutionsare engaged in distance learning, and not obtaining permis-sion for any materials. The guidelines advise those users ofthe risks. We know we are going to have to find solutions.The CONFU guidelines are only a first step in this process,especially because what we believe will ultimately be themajor form of distance learningasynchronous deliv-eryis not covered by the guidelines.Ultimately, CONFU did not receive enough endorse-ments for the distance-learning guidelines to include them.At the May 1997 meeting of CONFU, Carol Risher of theAssociation of American Publishers, and other representa-tives of content providers indicated that they were willing torefrain from lawsuits against schools that followed theguidelines. Would the outcome have been different if thishad been made known earlier? No one will ever know.Interlibrary LoanInterlibrary loan is a very old and respected practice inlibraries around the world. It is defined as the lending of anoriginal copy of material, or the reproduction of material, atthe request of a patron at a library that does not own therequested title (Ensign, 1997, p. 155). By the time the firstissue of Library Journal appeared in 1876, interlibrary loanwas already a topic of discussion (Green, 1876, pp. 1516).The first American Library Association Interlibrary LoanCode was adopted in 1919 (Gilmer, 1994, p. 24), and thepractice continues to develop. Technology certainly hasexpanded interlibrary loan; the development of the photo-copier has forever changed the way library patrons usematerials (McClure, 1997, p. 174). Newer technologies tocreate and send digital copies of works to satisfy interlibraryloan requests promise another significant change in the wayusers obtain and use the materials they request.When we commenced the CONFU negotiations, those ofus who work in libraries thought that the one area in whichwe would find easy agreement, although not without somenegotiation, was interlibrary loan (ILL). We had two rea-sons for optimism: there are existing guidelines that covercopies of print materials for ILL (Commission on NewTechnological Uses of Copyrighted Works, 1979, pp. 5455); and ILL was identified as a critical issue, albeit some-what obliquely, in the National Information Infrastructures(NII) Report of the Working Group on Intellectual PropertyRights (hereinafter White Paper) (Information InfrastructureTask Force, 1995). Thus, it appeared that ILL offered theprospect of somewhat easy agreement. There are noCONFU interlibrary-loan guidelines, however. The workinggroup evidenced extremely divergent viewpoints. The pub-lishing community never referred to ILL as anything otherthan document delivery and by the way, maybe interlibraryloan. The library community always referred to it as in-terlibrary loan, which might include document delivery.This emphasis foreshadowed the significant and ultimatelyinsurmountable differences from the beginning.More than two years of meetings sharpened the diverg-ing views, and we reached impasse at an early stage. Theimpasse was actually in the form of an agreement or accep-tance that it was too soon for an agreement, at least one thatcovered digital-to-digital copying. We then had a rebirth ofsorts based on earlier ILL guidelines for making and send-ing photocopies through interlibrary loan.The existing ILL guidelines were published, among otherplaces, in the Conference Report that accompanied the 1976Act (H.R. Rep. No. 1733, 1976, pp. 7274), and theyactually have the most meaningful stamp of approval fromCongress of any of the guidelines. They were developed bya commission appointed by Congress that had only twojobs: figure out what to do about software and databases,and develop interlibrary-loan guidelines (Commission onNew Technological Uses of Copyrighted Works, 1979).Interestingly, these guidelines never have been litigated.Therefore, their meaning can only be discerned from legis-lative history. The guidelines for photocopy interlibraryloan have worked reasonably well. Librarians continue tothink they are a little bit too restrictive, and publishers thinkthey are a little bit too liberal. One could surmise that thismeans they have worked well on average. These guidelinesrespect and support traditional interlibrary loan.JOURNAL OF THE AMERICAN SOCIETY FOR INFORMATION SCIENCEDecember 1999 1339The White Paper (Information Infrastructure Task Force,1995) recognized that interlibrary loan services are useful. Itseemed to indicate that interlibrary loan should continue inthe digital environment, but it further suggested that licens-ing agreements might replace interlibrary loan in the newenvironment. The White Paper seemed to include state-ments that give each side something to favor: librarians canquote one statement, and publishers can quote the otherstatement. Overall, the White Paper was not very helpful. Itbasically resolved that interlibrary loan is good, and weought to find a way to continue it in the digital environment.On the other hand, licensing agreements might preempt anyexercise of fair use.In negotiations, we were confronting the Association ofAmerican Publishers Statement on Document Delivery(Association of American Publishers, 1994), which focusedon fee-based document delivery. We have come to under-stand from AAP officials over time that they are mostconcerned about document delivery that produces profitsbeyond cost recovery. But, the AAP statement unfortunatelydoes not make this distinction. It basically states that doc-ument delivery does not qualify for interlibrary loan. Thisdifference reflected another instance when publishers andlibrarians simply used different terminology. Document de-livery can mean delivering a copy that is obtained frominterlibrary loan to the end user, or it can mean a fee-based service. The copyright law does not necessarilyeliminate this activityit likely is fair use (Gasaway &Wiant, 1994, pp. 5556). To publishers, however, itmeant something else. The AAP predominately identifieddocument delivery as the commercial services that somelibraries conduct.Progress was difficult because we started out using thesame words for very different concepts. During CONFU,publisher representatives also contended that they neversupported the CONTU interlibrary-loan guidelines. We al-ready knew that publishers disliked them, for they were notnegotiated guidelines. The ILL guidelines were developedby the National Commission on New Technological Uses ofCopyrighted Works, also known as CONTU (CONTU,1979), but not through negotiation like the classroom guide-lines (H.R. Rep. No. 1476, 1976, pp. 6870). Negotiationoccurred within CONTU, but the commission itself hadauthority to make a decision and to promulgate the guide-lines.Publishers also asserted that there can be no interlibraryloan, whatsoever, under fair use in the digital environment.Statements like that left little room for compromise andnegotiation. In May 1996, in an effort to find possibleagreement, the publishers offered a proposal to excludecertain libraries and certain technologies and agree on re-maining activities. The publishers wanted to exclude alllibraries that regularly service business and industry. Theproposal would exclude virtually every public library in theUnited States. Further, publishers suggested excluding li-braries that promote individual article supply services. Mostacademic libraries perform this service for faculty; other-wise, they are not fulfilling their educational missions. An-other suggested exclusion was any library that charges morethan cost recovery, or a specified portion thereof, for doc-ument delivery. (We actually might have reached agreementon that exclusion.) Other libraries that would not qualifyunder the AAP proposal include: libraries whose volume ofnonroyalty copying exceeds certain aggregate amounts, andlibraries that participate in concerted arrangements for theallocation of collections that expressly or implicitly antici-pate crossfulfillment of requests.Finally, and even worse, were the technologies thatwould be eliminated from consideration under the publish-ers proposal. These technologies include: fax machines thatare designed, connected, or used to scan input into a com-puter network or to create stored digital copies in an endusers facilities; fax machines that convert text to manipu-late files; and fax machines that are incorporated into apersonal computer. It would not be long before every faxmachine in a library is in a personal computer, and would bebarred from ILL under the publishers proposal. Librariessimply have operated on the principle that the technologyused is immaterial; it is the suggestion of fivemoreoften erroneously called the rule of fivethat should befollowed (Commission on New Technological Uses ofCopyrighted Works, 1979, pp. 5455).For user groups, responding to these proposals was dif-ficult. The user groups did analyze the proposals and con-cluded that we could put forward two guiding principles.First, libraries seek to facilitate the delivery of informationto scholars, teachers, students, and researchers, and that isour mission. Second, if royalties are due, they should bepaid. We were not saying libraries should never pay royal-ties, because at times they should. A subset of the workinggroup also said that we would consider possible eliminationof interlibrary loan for documents available from the pub-lisher in digital format, and at a fair price. But we alsopointed out that we would continue to digitize printed worksfor interlibrary loan. This position was not accepted bysome of the library community, and negotiations terminatedat that point. Thus, we had a complete failure to reachagreement, bringing an end to interlibrary-loan guidelines inthe context of CONFU.ReferencesAssociation of American Publishers. (1994). Statement of the AAP ondocument delivery. New York, NY. Available at: http://www.publishers.org/home/abouta/copy/statement.htmCommission on New Technological Uses of Copyrighted Works. (1979).Final report of the National Commission on New and TechnologicalUses of Copyrighted Works. Washington, DC: Library of Congress.Conference on Fair Use. (1998, November). Final report to the Commis-sioner on the conclusion of the Conference on Fair Use. Washington,DC: U.S. Patent and Trademark Office. Available at: www.uspto.gov/web/offices/dcom/olia/confu/confurep.htmConference on Fair Use. (1997, September). Report to the Commissioneron the conclusion of the first phase of the Conference on Fair Use.Washington, DC: U.S. Patent and Trademark Office. Available at:http://www.uspto.gov/web/offices/dcom/olia/confu/concltoc.html1340 JOURNAL OF THE AMERICAN SOCIETY FOR INFORMATION SCIENCEDecember 1999Copyright Act of 1976, 17 U.S. Code (1999). Available: http://www.loc.gov/copyright/circs/circ92.pdfCrews, K.D. (1997). Copyright and distance education: Displays, perfor-mances, and the limitations of current law. In L.N. Gasaway (Ed.),Growing pains: Adapting copyright for libraries, education, and society(pp. 377394). Littleton, CO: Fred B. Rothman & Co.Ensign, D. (1997). Resource sharing and copyright among library consortiamembers. In L.N. Gasaway (Ed.), Growing pains: Adapting copyrightfor libraries, education, and society (pp. 151171). Littleton, CO: FredB. Rothman & Co.Gasaway, L.N. (1998). Distance learning and copyright. Journal of LibraryServices for Distance Education, 1(2). Available at: http://www.westga.edu/library/jlsde/jlsde1.2.htmlGasaway, L.N. & Wiant, S.K. (1994). Libraries and copyright: A guide tocopyright law in the 1990s. Washington, DC: Special Libraries Associ-ation.Gilmer, L.C. (1994). Interlibrary loan theory and management. Englewood,CO: Libraries Unlimited.Green, S.S. (1876). The lending of books to one another by libraries.Library Journal, 1, 1516.H.R. Rep No. 1476, 94th Cong., 2nd Sess. (1976) [congressional reportaccompanying revision of copyright act].H.R. Rep. No. 1733, 94th Cong., 2nd Sess. (1976) [congressional reportaccompanying revision of copyright act].Information Infrastructure Task Force. (1995). Intellectual property and theNational Information Infrastructure: The report of the Working Groupon Intellectual Property Rights. Washington, DC: U.S. Patent and Trade-mark Office.McClure, L.W. (1997). Interlibrary loan in the electronic world. In L.N.Gasaway (Ed.), Growing pains: Adapting copyright for libraries, edu-cation, and society (pp. 173187). Littleton, CO: Fred B. Rothman &Co.JOURNAL OF THE AMERICAN SOCIETY FOR INFORMATION SCIENCEDecember 1999 1341Distance LearningInterlibrary LoanReferences