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From the issue dated March 28, 2003
Slow Start for Long-Awaited Easing of Copyright Restriction
By DAN CARNEVALE
Deborah K. Griggs used movie clips in her courses on
interculturalcommunication, turning off the sound to show
students what they could figure out from just watching the
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
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
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
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
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
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
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
"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
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
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
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
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:
The college must be accredited and nonprofit.
The college must have an internal policy on use of copyrighted
material and on copyright law.
The college must provide printed or online resources for
faculty members that describe their rights and
responsibilities under copyright law.
The material must not have been originally intended for
The material must have been lawfully acquired
The material must be an integral part of the class session.
Reasonable precautions must be made to restrict access to the
copyrighted content to students enrolled in the course.
Other reasonable controls must be used to prevent students
from disseminating the material after viewing it.
If a digital version of the material is readily available for
use at the institution, then the instructor cannot convert an
analog version to digital form for use in an online course.
The college must inform students that the material may be
protected by copyright law.
SOURCE: North Carolina State University
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