Digital Millennium Copyright Act (DMCA)
Testimony of James G. Neal, Dean,
University Libraries, Johns Hopkins University
Hearings on Distance Education Through Digital
U.S. Copyright Office, Library of Congress
January 26, 1999
I am James G. Neal, Dean, University Libraries, Johns Hopkins University.
I am here today as a representative of five of the Nation's leading library
associations, the Association of Research Libraries, the American Association
of Law Libraries, the American Library Association and its division, the
Association of College and Research Libraries, the Medical Library Association,
and the Special Libraries Association. I appreciate the opportunity to
testify on distance education - this is an issue that is increasingly
redefining how our institutions provide educational services, both today
and in the years ahead.
There are four key points that I would like to emphasize this afternoon:
- We recommend that the current distance education exemption be updated
to facilitate use of the latest technologies and pedagogical practices.
- As in earlier legislative debates, it is important to balance the
interests of users and owners of copyrighted works so that education
institutions, including libraries, may fully realize the benefits of
information technologies and the networked environment.
- In designing changes to the copyright laws, it will be important to
ensure that the statute is sufficiently flexible to incorporate new
technologies not yet developed or now thought of as "cutting edge."
In a rapidly changing technological environment, permitting institutions
to utilize the most effective and efficient technologies is critical
to meeting the educational mission.
- Licensing is not a replacement for a statutory balance of rights.
Statutory language provides important policy guidance that permits reasonable
parties to engage in licensing discussions which, ultimately should
complement the law. Unless federal copyright policy explicitly provides
for a modern distance learning limitation in keeping with educational
needs and technological opportunities, users negotiating licenses will
find that the current law leaves them more subject to terms and pricing
on a "take it or leave it" basis.
Distance Education and Libraries
There are many definitions of distance education which in part are illustrative
of the rapid change that the field is experiencing. Two popular definitions
by the U.S. Distance Learning Association and the University of Wisconsin
- The acquisition of knowledge and skills through mediated information
and instruction, encompassing all technologies and other forms of learning
at a distance; and
- A planned teaching and/or learning experience that uses a wide spectrum
of technologies to reach learners at a distance and is designed to encourage
learner interaction and certification of learning.
The key feature of distance learning, as described in these definitions,
is its ability to be delivered anytime, anywhere, to anyone utilizing
a growing array of information technologies. This exciting potential K-99
for both the public and private sectors - holds important promise for
the United States to maintain its leading edge in the global economy.
A variety of approaches can facilitate distance learning. With the advent
of new technologies a number of new delivery models have emerged; the
remote classroom, networked learning, and self-paced independent learning.
These approaches include both asynchronous and synchronous communication,
Internet and web-based training, interactive television, audioconferencing,
videoconferencing, and more.
The remote classroom approach to distance learning is modeled after
the traditional classroom method of teaching. It is enhanced, however,
by the use of audio and video technologies. This approach is often used
in an effort to deal more efficiently with large groups of students in
different locations. It allows instruction to be delivered beyond the
confines of the originating site, and provides significant opportunities
for real-time interaction between instructors and learners. Modes of delivery
which support this approach to learning include technologies such as interactive
television and one-and two-way satellite videoconferencing.
Interactive television and videoconferencing allow two or more people
at different locations to see and hear each other at the same time. These
technologies establish a visual connection among participants and can
facilitate a high degree of collaboration between delivery sites. Videoconferencing
varies in its level of synchronous interactivity. It can be one-or two-way
video with one-or two-way audio. Although interactive television and videoconferencing
bridge distance by linking disparate locations, they do require participants
to travel to a downlink site at a pre-defined time.
The networked learning approach is characterized by its predominant
use of asynchronous communication between learners and teachers. It is
time-and place-independent, unlike the remote classroom approach, and
involves many-to-many interactive communication. This approach is unique
in its goal of fostering collaboration and interaction between and among
instructors, learners and their educational resources. Networked learning
is very flexible in that it allows the learners to determine the pace
of study and control their activity. The predominant mode of delivery
for networked learning is the web-based course.
Web-based learning presents dynamic content in an environment allowing
self-directed and self-paced instruction. Web-based learning has several
key characteristics. It has the ability to deliver diverse media components
and is platform independent. Learning resources can extend beyond the
basic course content to include Internet resources, commercial databases,
and public domain resources. Communication between learners and facilitators
can be seamlessly integrated into the web-based course environment via
online discussion software tools. Content can be easily updated to reflect
the changing interests of the facilitators and learners. Finally, elements
of asynchronous communication can be built into the course design in order
to provide learners with a real-time educational experience.
With the rapid growth in distance education initiatives, there is an expanding
role for libraries in distance education support services. Experience
to date demonstrates a variety of programs supported by different academic
departments with the library providing a number of services. These distance
education programs range from instruction at remote sites by traveling
faculty, to satellite transmission, to distance learning via the network
with students and faculty working from a variety of settings. The challenge
to the library is to support all of these disparate activities which,
in part, calls for experimentation to address evolving programs. Such
support can include maintenance of off-site collections at regional centers
and campuses, interlibrary loan units, other delivery services including
electronic delivery of information resources, reference assistance, and
access to needed materials locally and off-site via consortium and other
Providing access to reserve readings in the electronic environment is
one of the most innovative services being offered. Students enrolled in
a distance education course may access readings online. Librarians use
passwords to protect e-reserve files and make them accessible only to
students enrolled in a specific course and only for the duration of the
In addition, librarians in many instances coordinate and manage the
permissions process for distance learning courses and provide additional
training and technical support to distance education students. Another
key role for the library in a distance education program is to establish
how these students will be authenticated to have access to licensed resources
in addition to taking advantage of other library services. Ensuring effective
access, both technologically and with regards to meeting information needs,
is a crucially important element of a successful distance learning enterprise.
The following examples illustrate how selected libraries are using digital
technologies to serve the needs of distance learners.
- At the Johns Hopkins University, the Libraries are providing an expanding
array of content and information services to a growing body of distance
learners regionally, nationally and internationally. These services
include: electronic reference materials, online reference services,
access to citation and full-text databases, electronic and fax delivery
of materials, interlibrary loan services, electronic course reserves,
discipline home pages, and electronic instruction. An excellent example
is the library support provided to students in the Business of Medicine
Program, approximately 350 physicians and other health professionals
taking Hopkins courses at 25 sites around the country through the Calibre/Sylvan
- The University of Maryland University College (UMUC) Library serves
a large number of undergraduate and graduate students via the Internet
in three primary areas of service: reference, document delivery, and
instruction. Students have access to reference librarians through asynchronous
computer conferencing, live chat sessions and email. Document delivery
is facilitated by providing distance learners with secure access to
a select number of the library's 56 licensed databases on the Web. Students
can also access resource material electronically via UMUC's e-reserve
system. In the area of instruction, librarians participate as guest
lecturers in distance education courses offered via UMUC's web-conferencing
system, Tycho. They are also developing a virtual library classroom
which will include online tutorials and a required course for graduate
- The University of Maine System Network (UNET) offers more than 96
courses per semester at over 100 locations with instruction via interactive
television, compressed video, two-way web-based courses, and video-in-a-box,
in which lectures are provided on tape and interaction is conducted
via e-mail and class listservs. Library services are coordinated through
Off-Campus Library Services (OCLS) which manages all intellectual property
issues, including course reserves for faculty engaged in distance education
activities. The University's digital library, Mariner, is available
at all remote locations, with the students' library cards giving them
access to the system. OCLS also provides access to resources via web-based
fulltext databases and electronic reserves. In addition, a toll free
number for either reference or technical assistance is available to
distance learning students. Finally, OCLS expands on its traditional
training role by conducting bibliographic instruction sessions regularly
via interactive television.
- The National Laboratory for the Study of Rural Telemedicine at the
University of Iowa College of Medicine is conducting a series of five
telemedicine research projects in the areas of diabetes, vacular ischemia,
children with disabilities, pediatric echocardiograms, and psychiatric
services in rural areas. Major funding for these projects is being provided
through a contract with the National Library of Medicine. The Laboratory
is also supporting the following Information Support Projects in collaboration
with the Hardin Library of the Health Sciences at the University of
- Library services have been shown to be highly utilized and capable
of influencing medical decision-making. The first of two information
support projects, based at the Hardin Library, will provide electronic
medical library services, including document delivery, to rural hospitals.
Patterns of use and incorporation into practice will be tracked. The
second project, the Virtual Hospital, is a digital multimedia database
supporting "just-in-time" access to information for practice and continuing
information, as well as patient instructional materials. Information
in the Virtual Hospital is taken from medical textbooks, faculty lectures
and presentations, patient case studies, and other health information
sources. The multimedia aspect allows the user to view textual, graphical,
audio, and even full-motion video information within the same interface.
A major strength of this database, which is already in limited use on
the Internet, is its adherence to industry standard protocols.
- Distance education has not only affected the services libraries provide
to faculty and students, but has also revitalized library education.
Many institutions have incorporated distance learning into their traditional
library and information science education programs. The Graduate School
of Library and Information Science (GSLIS) at the University of Illinois
Urbana-Champaign, for example, offers one of the top five Master of
Library Science (MLS) degrees in the nation. For many years, GSLIS has
offered a Friday's-only master's program for working adults who live
within reasonable driving distance from the Urbana campus. The growing
popularity of this unique program led GSLIS to explore the possibilities
of Internet- based delivery. Their LEEP3 program, now in its second
year, makes it possible for students at the far corners of the state
to complete almost all of their master's coursework over the Internet.
They use advanced technologies that provide asynchronous, web-based
instruction. Audio, video and real time chat sessions are all a part
of the LEEP3 experience.
Copyright and Licensing Issues - Updating the Copyright Statute
As the Copyright Office undertakes to review and consider possible changes
to the copyright law to accommodate digital technologies in distance education
activities, it is important to consider the context for educational exemptions
included in the 1976 Act and why these are equally applicable, indeed,
require updating today. Educational institutions, including libraries,
are the primary means by which our society permits the free and open exchange
of information and ideas. The Copyright Act and subsequent revisions such
as the Digital Millennium Copyright Act encourage such exchange in recognition
of the clear public policy benefits, which accrue to members of the public
and private sectors and to the advancement of knowledge.
In crafting an exemption for educational institutions in 1976, Congress
explicitly recognized that not-for-profit educational institutions are
instrumental in "promot[ing] the progress of science and the useful arts."
Thus, among some of the exemptions included was a limitation on proprietary
rights of Sec. 106 in support of educational activities. This and other
exemptions are the means by which the drafters balanced the rights of
owners and users of copyrighted information while advancing societal interests.
Such balancing is again needed today to permit educational institutions,
including libraries, to fully capitalize and realize the benefits of information
technologies and the networked environment.
In a nutshell, the law should be updated to make it unequivocal that,
just as face to face teaching is an essential educational activity, so
to is distance learning. As a matter of copyright policy, members of the
educational community should be expressly authorized to engage in distance
learning activities, using digital technologies, as is permitted today
in the classroom. There should not be a distinction between what is permitted
in a "traditional" classroom and access to educational resources in a
remotely controlled environment. Technologies are no longer limited to
non-interactive modes of delivery and include videoconferencing, computer-
based training, web-based training, and more.
Policies should encourage experimentation and exploration to take advantage
of the opportunities afforded by the networked environment. In addition,
in designing changes to the copyright laws, it will be important to ensure
that the statute is sufficiently flexible to incorporate new technologies
not yet developed or now thought of as "cutting edge." In a rapidly changing
technological environment, permitting institutions to utilize the most
effective and efficient technologies is critical to meeting the educational
mission. These policies will, in part, depend upon a legal framework that
allows for educational programs to evolve over time and not be restricted
to outmoded delivery mechanisms.
Libraries and educational institutions negotiate hundreds, indeed thousands
of licenses each year in support of educational activities. In the library
community, we purchase or license approximately $2 billion of information
resources each year. Licensing has become a fact of life in our institutions,
and is one of several outgrowths of law to further define terms and conditions
of access. But licensing is by no means a replacement for a statutory
balance of rights. In fact, statutory language provides important policy
guidance that permits reasonable parties to engage in licensing discussions
which, ultimately should complement the law. The mere availability of
license agreements by no means negates the need for a reaffirmation of
congressional policy with regards to access to educational materials,
locally and at a distance. Absent reform, current law leaves those in
distance education at a disadvantage negotiating licenses.
Congress has acknowledged the crucially important societal function
of educational institutions, including libraries in the distance education
arena. This has not changed today with the availability of licenses. In
fact, it has been demonstrated that licenses can undermine privileges
available to libraries and educational institutions. Licenses can restrict,
indeed deny fair access to needed information resources, price users and
institutions out of the market depending upon terms, and importantly,
deny access to resources based solely on cost.
It is critically important to comment at this juncture on a few of the
letters received by the Copyright Office regarding the availability of
license agreements. Some libraries have noted that site specific license
agreements make serving remote users almost impossible. In some cases,
access to remote users is expressly prohibited.
Finally, statutory recognition of educational and library limitations
or exemptions has permitted a fair and more balanced process to occur
in license negotiations. Such leverage is crucial to maintaining a level
playing field in a license discussion. The notion that there would be
appropriate exemptions in support of educational purposes should not be
undercut nor negated by license agreements. Unless federal copyright policy
explicitly provides for a modern distance learning limitation in keeping
with educational needs and technological opportunities, users negotiating
licenses will find that the current law leaves them more subject to terms
and pricing on a "take it or leave it" basis.
The Copyright Office has also raised the issue of the value of voluntary
guidelines such as those discussed over the past few years under the auspices
of the Conference on Fair Use. Despite extensive discussion, none of the
draft guidelines were ever adopted by the higher education and library
community. The proprietary community endorsed the CCUMC guidelines, but
only after negotiations broke down. In fact, the CCUMC Guidelines were
extremely controversial in part because of the suggestion that the guidelines
could be converted from a 'reasonable safe harbor' to the outer perimeter
of fair use. The leading higher education and library groups (fourteen
associations) opposed them. Thus experience in this arena demonstrates
that development of guidelines upon which all sectors can concur has not
been productive, indeed, became a highly controversial exercise with little
to show for extensive effort. The library community does not support revisiting
the process of guideline development in the distance education arena.
The library community welcomes the opportunity to work with the Copyright
Office to explore the current and evolving parameters of distance education
and to ensure that the benefits of the networked environment can be realized
by education institutions of all types in designing distance education
programs both now and in the future.
The American Association of Law
Libraries is a nonprofit educational organization with over 5,000
members nationwide. Our members respond to the legal and governmental
information needs of legislators, judges, and other public officials at
all levels of government, corporations and small businesses, law professors
and students, attorneys, and members of the general public.
The American Library Association
is a nonprofit educational organization of 58,000 librarians, library
educators, information specialists, library trustees, and friends of libraries
representing public, school, academic libraries dedicated to the improvement
of library and information services. One division of ALA, the Association
of College and Research Libraries, has a membership section dedicated
specifically to distance education with an interest in how to provide
resources and services to distance learners.
The Association of Research Libraries
is a not-for-profit organization representing 122 research libraries in
the United States and Canada. Its mission is to identify and influence
forces affecting the future of research libraries in the process of scholarly
communication. ARL programs and services promote equitable access to,
and effective use of, recorded knowledge in support of teaching, research,
scholarship, and community service.
The Medical Library Association
is a professional organization of more than 5,000 individuals and institutions
in the health sciences information field. MLA members serve society by
developing new programs for health sciences information professionals
and health information delivery systems, fostering educational and research
programs for health sciences information professionals. and encouraging
an enhanced public awareness of health care issues. Through its programs
and publications, MLA encourages professional development in research,
education, and patient care.
The Special Libraries Association
is an international professional association serving more than 14,000
members of the information profession, including special librarians, information
managers, brokers, and consultants. The Association has 56 regional/state
chapters in the U.S., Canada, Europe, and the Arabian Gulf States and
28 divisions representing subject interests or specializations. Special
libraries/information centers can be found in organizations with specialized
or focused information needs, such as corporations, law firms, news organizations,
government agencies, associations, colleges, museums, and hospitals.