Copyright Issues in Teaching with Technology

Guidelines
Congress recognized early on that the non-profit educational community could be assisted by guidelines that help define acceptable practices under fair use. The House Report contained two sets of guidelines that had been carefully negotiated by educator and publisher groups during the development of the law, one for classroom copying and one for educational uses of music. In 1979, a third set of guidelines was negotiated and approved covering off-air recording of broadcast programming for educational purposes.

As the digital age progressed, the shortcomings of the 1976 law and existing guidelines became more and more evident. In 1994, the Clinton Administration convened the Conference on Fair Use (CONFU) to address contemporary fair use issues in the digital environment. For two-and-a-half years, representatives of nearly 100 proprietary, educational, and governmental organizations met collectively and in smaller working groups to develop guidelines for distance learning, image collections, multimedia, electronic reserves, and interlibrary loan.

The outcome was disappointing. Negotiators had considerable difficulty finding common ground, with educators and librarians resisting guidelines they felt were overly restrictive and copyright owners concerned about giving up too much. The sides in the interlibrary loan discussions were so far apart that no workable draft ever appeared from that workgroup. Drafts were developed by the distance learning, image collections, and electronic reserves workgroups but failed to achieve much support. Only the multimedia guidelines workgroup, which had already been functional for a year before the establishment of CONFU, developed a document achieving consensus support, but even these guidelines drew strong opposition from higher education and library organizations. In May 1997, CONFU elected neither to endorse nor reject any of the drafts. Its participants agreed that the opportunity to meet and negotiate had been healthy, and that discussions should continue.

Thus, we have guidelines at least in draft form for many of the technology applications college faculty might encounter today. Remember that the guidelines are just that -- guidelines. They do not identify absolute limits that cannot be exceeded. They may represent “safe harbor” standards, because the endorsing organizations have agreed not to pursue litigation as long as the guidelines are followed. A prominent copyright attorney once pointed out to us that no one has ever been successfully litigated for following the guidelines. Intellectual property specialists in higher education emphasize that the guidelines represent the minimal level of acceptable behavior, and the actual boundaries may well exceed the limits specified. The true limits can only be determined by the courts, although none of us wants to be the test case.

The guidelines will be discussed within the context of the specific applications described below.

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