The focus of this special report required under the Digital Millennium Copyright Act (DMCA), was on Section 403 (Limitations on exclusive rights; distance education) of the DMCA. Both the Act (95 pages) and the report (well over 300 pages) are lengthy and highly technical. This summary highlights topics from the Report's executive summary that may be of relevance to learning objects and repositories.

The report looked at problems in licensing copyrighted works, including locating copyright owners; the inability to obtain responses from copyright owners; and unreasonable prices. A related section focused on solutions to licensing problems, including using technology to protect works; using electronic copyright information systems; and creating an on-line licensing system. Additionally, technological security for distance education was discussed, and strategies such as creating a viable protection technology and having some way of limiting student access to information are included in the report.

The report notes that an example of creating a viable protection technology device would be a secure container. This device would allow the copyright owner to set rules for use of the work, and the rules would be attached to the copies of objects being accessed. (One example currently in use is the "view-only" access mode; many publishers let clients access materials via this mode before products go on the market.) Another example is the digital watermark. Watermarks provide a means by which copyright owners can track the use of their product along the chain of its use.

A major focus of the report centers on applications of the Copyright Law to distance education. The authors point out that decisions to use copyrighted material may be based on explicit consent from authors or may simply invoke an exemption policy. Relevant sections of the law are Sections 107 and 110. The intention of the law reflected in Section 110 is "to cover all of the methods by which performances or displays in the course of systematic instruction take place." Review of Section 110 indicates two exemptions from copyright law. The first concerns use of materials in a face-to-face, traditional classroom situation. The Section indicates that this use of copyrighted material does not require authorization. The second concerns performance or displays in instructional broadcasting. Both have certain limitations in the law. These limitations are primarily concerned with pre-digital forms of communication and instruction. Because only acts of performance and display are addressed, it does not authorize acts of reproduction or distribution. This is significant given the ease of such activity with digital technology and new concerns with the design, development, and reconfiguration needs of ideal learning objects. Section 107 covers fair use, which is a broad and general limitation.

It should be noted that the international context of copyright policy is even more unclear given that legal jurisdiction had not been settled at the time that this document was written. However, the United States has signed two major treaties with respect to copyright: The Berne Convention and the TRIPs Agreement.

While most of the analysis in the Report was speculative at the time it was written, one very encouraging statement included the following:

As a fundamental premise, the Copyright Office believes that emerging markets should be permitted to develop with minimal government regulation. When changes in technology lead to development of new markets for copyright works, copyright owners and users should have the opportunity to establish mutually satisfactory relationships. (xiv)

Other points of interest regarding the Report include the following: First, the Copyright Office recommended that exemptions of performance and display be broadened to include digital transmission and the rights of reproduction and distribution. Another point of interest regards the centrality of mediated instruction. This is the idea that the law protects copyright owners by making access to their work analogous to the manner in which such works are accessed in a live classroom. Indeed, one requirement that the Copyright Office recommended for elimination concerns policy on the physical classroom. An additional recommendation is that the scope of copyright policy be expanded to include categories of works covered beyond nondramatic and musical works.

For the full text, see http://www.loc.gov/copyright/disted/

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