Distance learning is defined as any formal instructional approach in which the majority of instruction occurs when educators and students are not in the physical presence of one another. Today’s colleges and universities constitute the fastest-growing market of online distance learning courses offered to students. At the same time, postsecondary institutions use the Internet for distance learning courses more than any other mode of communication.
In light of the changing educational environment, this entry discusses emerging legal-technological issues in the cyber age related to copyright infringement liability associated with distance learning courses delivered in Internet-based environments. Copyright laws protect the creators or owners of original works, such as movies, plays, music, computer programs, photos, or paintings. Insofar as today’s administrators and instructors face an increasing risk of litigation as well as the potential of paying large amounts of monetary damages and substantial legal fees for noncompliance with existing copyright laws when dealing with new platforms for the delivery of education via the spread of distance learning, this entry reviews legal issues with this approach to learning.
This entry focuses on what can be described as the more technological developments in higher education, rather than other issues such as cheating and other forms of academic dishonesty, academic freedom, or the ownership of course content. Because it is important to consider how the use of technology interfaces with existing copyright laws in the world of distance learning, the entry highlights issues in this area.
Contrary to popular belief, distance learning is not a new educational development. Rather, distance learning has existed for more than a century, beginning with the development of correspondence courses in the late 1880s. Unlike today’s distance learning courses, which are delivered online, lessons from correspondence courses were mailed to students who completed them and mailed them back; they were then graded and mailed back to students. The delivery method of distance learning courses changed dramatically with the advent of distance learning on the Internet in the mid-1990s. Based on the instructional development and delivery of online, or Web-based courses, the geographic location of students and faculty has become increasingly irrelevant, because online distance learning courses can be taken anywhere or at any time as long as instructors and students have Internet access.
The Digital Millennium Copyright Act (DMCA)
As with any type of instruction, access to instructional materials and making copies of these sources of information present legal issues to be considered. Under Section 110(1) of the 1976 Copyright Act, often referred to as the “classroom exception,” the use of copyrighted works and materials without formal copyright permission is permitted in face-toface instructional course settings if faculty members meet three criteria. First, the display and reproduction of copyrighted materials must take place in a nonprofit educational organization. Second, both faculty members and students must be present in the same location. Third, if materials are audiovisual works, lawful copies of the copyrighted materials must be made. Unfortunately, because this broad classroom exception under Section 110(1) of the 1976 Copyright Act did not include a consideration of the evolving new category of online distance learning courses that were incorporating emerging technologies as the primary method of instructional delivery, questions remain.
The Digital Millennium Copyright Act (DMCA), which amended the 1976 Copyright Act, became law on October 28, 1998. The primary legal directive of the DMCA was to provide a balance between the promotion of distance learning through technology while simultaneously maintaining the legal rights of copyright holders and users.
Since the DMCA’s enactment, six categories of copyrighted work exemptions have developed that can be specifically applied to online distance learning courses. These six categories provide exemptions and allow persons to use selected copyrighted work without permission. These categories are the following:
- Audiovisual works that are located in institutional educational libraries or the film or media studies department of colleges and universities, if compilations or copies of these works are made exclusively for educational use in the classroom by faculty members who teach in the area of media or film.
- Computer programs and video games that are distributed in media formats that have become obsolete and are used exclusively for the purpose of preservation or archival reproduction by a college or university library.
- Computer programs that are no longer manufactured, or where repairing these programs is no longer reasonably available in the commercial marketplace.
- Literary publications that are distributed in an e-book format.
- Computer programs that allow wireless telephone handsets to connect to a wireless telephone communication network.
- Sound recordings and audiovisual works distributed in compact disc format and protected by measures that control access to lawfully purchased works.
The TEACH Act
The need for expanding the provision of copyright exemptions provided to students and teachers through online distance learning courses was recognized with the passage of the Technology, Education, and Copyright Harmonization Act, or the TEACH Act, on November 2, 2002. The TEACH act updated distance learning provisions to both the 1976 Copyright Act and the Digital Millennium Copyright Act (DMCA). Specifically, the TEACH Act amended both sections 110(2) and 112 of the 1976 Copyright Act. With the passage of the TEACH Act, the amount of copyrighted materials an instructor in an online distance learning course can now use without formal copyright permission has expanded. This expansion includes instructional content and materials transmitted to students to any location other than the classroom as well as the ability to digitize certain types of copyrighted works.
In order to qualify for these copyright exemptions under the TEACH Act, colleges and universities must comply with a number of technological and legal requirements. One of the major technological requirements in this regard includes the implementation of a computer system that prevents unauthorized access to or copying of educational online broadcasts by persons not formally enrolled in a particular distance learning course. The primary legal requirement of the TEACH Act is that educational institutions, such as colleges and universities, must formally establish copyright policies describing and requesting compliance with copyright law provisions, and they must distribute this information to faculty, students, and staff members.
In sum, the enactment of the TEACH Act has resulted in the most change in the field of copyright law as it applies to distance learning environments. Unlike previous copyright law provisions, such as the Digital Millennium Copyright Act (DMCA), which focuses almost exclusively on individual instructors, the TEACH Act holds educational institutions directly accountable for compliance with copyright usage laws. Insofar as educational institutions face liability under the TEACH Act, there are incentives for faculty members and administrators at colleges and universities to follow the act’s requirements. To date, there has been no reported legal case involving the application of copyright laws to distance learning. As such, the legal connection between copyright law and digital learning is a new and evolving legal field. Undoubtedly, as new technologies emerge and are used instructionally in distance learning, issues of potential copyright infringement will arise.
Kevin P. Brady
- Armatas, S. A. (2008). Distance learning and copyright: A guide to legal issues. Chicago: American Bar Association.
- Mehrotra, C. H., Hollister, C. D., & McGahey, L. (2001). Distance learning: Principles for effective design, delivery, and evaluation. Thousand Oaks, CA: Sage.
- Copyright Act, Pub. L. No. 94-553 (1976).
- Digital Millennium Copyright Act, Pub. L. No. 105-304 (1998).
- Technology, Education, and Copyright Harmonization Act (TEACH Act), Pub. L. No. 107–273 (2002).