July-August 2001

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Washington Watch: Digital Copyright

By Mark F. Smith

Hisotrically, revision of the Copyright Statute has been quite rare, but Congress has had to make some alterations in the last few decades because of changes in technology. In 1976 Congress res-ponded to the emergence of photocopying, which threatened to make much of copyright protection obsolete. In 1998 Congress responded to the rise of computer networks and digital information transfers by passing the Digital Millennium Copyright Act.

That act left open a number of questions relating to distance education, directing the U.S. Copyright Office to study existing copyright law and determine whether changes were needed "to promote distance education through digital technologies, . . . while maintaining an appropriate balance between the rights of copyright owners and the needs of users." The Copyright Office issued a report advocating certain changes in 1999, but legislation to enact the recommendations has only just been introduced.

In March Senators Orrin Hatch and Patrick Leahy introduced the Technology, Education, and Copyright Harmonization Act of 2001 (TEACH Act). The AAUP supports this legislation, because it provides for a balanced treatment in the distance education arena. Current law allows certain exemptions to the exclusive rights of copyright holders, including fair use and specific rights allowed for educational and research purposes, including classroom teaching. The TEACH Act extends those exemptions to the digital environment, but narrowly, covering only courses that are under the "direction of an instructor as an integral part of a class session offered as a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution." The Senate Judiciary Committee approved the TEACH Act in May, after modifying it to strengthen the protections against unauthorized use of copyrighted materials. The modifications gained the support of content providers, who had originally opposed the bill. The full Senate passed the bill early this summer.

The legislation addresses a specific need to ensure that material available for use in one classroom setting should be available in all classroom settings, regardless of physical, technological, or geographical boundaries. It certainly does not address all the issues raised by the expansion of distance education. Over the past few years, the AAUP has identified serious concerns with its implementation in terms of academic freedom, shared governance, and educational quality. These issues need to be addressed in a variety of forums, including individual campus policies, accreditation visits and procedures, and government programs.

Even in the copyright area, the TEACH Act does not address one of the most critical faculty concerns-the ownership of academic work created by professors. The Association's position on this issue is clear, and quite specific. Its Statement on Copyright treats the "faculty member as the copyright owner of works that are created independently and at the faculty member's own initiative for traditional academic purposes . . . regardless of the physical medium in which these 'traditional academic works' appear, that is, whether on paper or in audiovisual or electronic form."

The AAUP statement is based on current copyright law, and guides the activities of members as they help develop policies at their individual campuses. The few limited exceptions to this principle are carefully defined in the text of the statement. The Association recognizes that the same technological developments that led Congress to revise copyright law have led individual campuses to adjust their own policies.

In recent years, for example, traditional research universities such as Columbia University and the University of Pennsylvania have revised their intellectual property policies through internal governance procedures. Some institutions with faculties engaged in collective bargaining, such as Rider and Kent State Universities, have incorporated articles into their contracts outlining the intellectual property policies. Still other institutions, such as San Diego State University, where the faculty operates under a statewide system of collective bargaining, have developed campus policies that protect faculty rights through discussions with the administration and the Faculty Senate. These are only a few of the institutions that have dealt with these issues in the last year or two.

The AAUP has developed some generic language for campus policies and contracts based on its policy statements. For these documents and other Association reflections on these issues, visit the AAUP Web site.

Mark Smith is director of AAUP government relations.