99–006

107TH CONGRESS REPORT " HOUSE OF REPRESENTATIVES ! 2d Session 107–687

TECHNOLOGY, EDUCATION, AND COPYRIGHT 

HARMONIZATION ACT OF 2001

SEPTEMBER 25, 2002.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Mr. SENSENBRENNER, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

[To accompany S. 487] 

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill 

(S. 487) to amend chapter 1 of title 17, United States Code, relating 

to the exemption of certain performances or displays for educational uses from copyright infringement provisions, to provide 

that the making of copies or phonorecords of such performances or 

displays is not an infringement under certain circumstances, and 

for other purposes, having considered the same, reports favorably 

thereon without amendment and recommends that the bill do pass.

CONTENTS 

Page 

Purpose and Summary ............................................................................................ 2

Background and Need for the Legislation ............................................................. 3

Hearings ................................................................................................................... 4

Committee Consideration ........................................................................................ 4

Vote of the Committee ............................................................................................. 5

Committee Oversight Findings ............................................................................... 5

Performance Goals and Objectives ......................................................................... 5

New Budget Authority and Tax Expenditures ...................................................... 5

Congressional Budget Office Cost Estimate .......................................................... 5

Constitutional Authority Statement ...................................................................... 6

Section-by-Section Analysis and Discussion .......................................................... 7

Changes in Existing Law Made by the Bill, as Reported ..................................... 16

Markup Transcript .................................................................................................. 20

2

PURPOSE AND SUMMARY

S. 487, the ‘‘Technology, Education And Copyright Harmonization Act of 2001,’’ or the ‘‘TEACH Act,’’ updates the distance education provisions of the Copyright Act for the 21st Century. The act 

allows students and teachers to benefit from deployment in education of advanced digital transmission technologies like the Internet, while introducing safeguards to limit the additional risks to 

copyright owners that are inherent in exploiting works in a digital 

format. This legislation has been crafted in a process that has ensured broad consensus of affected parties. 

Education is the means by which we develop our nation’s human 

resources. In this information age, marked by both cooperation and 

competition on a global scale, the ability of the United States to 

meet its domestic and international challenges and responsibilities 

is directly dependent on its educational capacity. That capacity in 

turn will be determined by the quality of our educational programs 

and their reach to all sectors of the public. For our nation to maintain its competitive edge, it will need to extend education beyond 

children and young adults to lifelong learning for working adults, 

and to reach all students of all income levels, in cities and rural 

settings, in schools and on campuses, in the workplace, at home, 

and at times selected by students to meet their needs. 

Digital distance education helps make this possible, whether in 

the traditional sense, when instructor and student are separated in 

place and perhaps time, or in new hybrids of traditional classroom 

education combined with online components. Increasingly, college 

students can submit class assignments by email and participate in 

discussions that connect students in a classroom with students beyond the classroom. Similarly, K–12 students can learn about the 

customs and cultures of other countries through real-time audiovisual conversations with pen pals from those countries; they can 

learn science in new ways by having scientific demonstrations and 

actual experiments conducted at distant locations brought to them 

in real time via the Internet. The National Science Foundation, the 

National Academy of Sciences, and other scientific societies and 

educational organizations are working hard to improve our nation’s 

science and mathematics education; other groups are developing 

new ways to bring humanities and the arts to students and the 

broader public. Many of these new educational efforts draw on advances in information technology and digital networks. 

The TEACH Act amends sections 110(2) and 112 of the Copyright Act to facilitate the growth and development of digital distance education. The act expands the exempted copyright rights, 

the types of transmissions, and the categories of works that the exemption covers beyond those that are covered by the existing exemption for performances and displays of certain copyrighted works 

in the course of instructional transmissions. Thus, for example, it 

allows transmissions to locations other than a physical classroom, 

and allows for performances of reasonable and limited portions of 

audiovisual works, sound recordings, and other works within the 

scope of the exemption. At the same time, it maintains and clarifies 

the concept of ‘‘mediated instructional activities’’ to which the exemption applies, and includes safeguards such as obligations to implement technological protection measures and limitations on the 

3

1Pub. L. No. 94–553, 90 Stat. 2549 (1976). 

2Pub. L. No. 105–304, 112 Stat. 2877 (1998). 

3 Id.

amounts of certain types of works that may be performed or displayed. The act also amends section 112 of the Copyright Act to 

permit storage of copyrighted material on servers in order to permit the performances and displays authorized by section 110(2) to 

be made asynchronously in distance education courses. 

BACKGROUND AND NEED FOR THE LEGISLATION

Section 110(2) of the Copyright Act was enacted in 1976 1 on the 

basis of a policy determination that certain performances and displays of copyrighted works in connection with systematic instruction using then-known forms of distance education should be permitted without a need to obtain a license or rely on fair use. The 

technological characteristics of digital transmissions have rendered 

the language of section 110(2) inapplicable to the most advanced 

delivery methods for instruction. Without an amendment to accommodate these new technologies, the policy behind the 1976 act 

would be increasingly diminished. 

At the same time, two factors recommend some recalibrating of 

the policy balance struck in 1976. The characteristics of digital 

transmission technologies present new educational opportunities, 

such as the ability to provide a media-rich, interactive educational 

experience to students unable to attend classes at the physical location of the institution. On the other hand, the ability of digital 

transmission technologies to disseminate rapidly and without control virtually infinite numbers of high quality copies, create new 

risks for the owners of copyrighted works used in distance education. 

In the 5 years leading up to the passage of the Digital Millennium Copyright Act (DMCA) in 1998,2 the application of copyright 

law to distance education using digital technologies was the subject 

of public debate and attention in the United States. Extensive discussions concerning the issue were conducted during Congress’ consideration of the DMCA, but no conclusion was reached. Therefore, 

in section 403 of the DMCA, Congress directed the Copyright Office 

to consult with representatives of copyright owners, non-profit educational institutions, and non-profit libraries and archives, and 

thereafter to submit to Congress ‘‘recommendations on how to promote distance education through digital technologies, including 

interactive digital networks, while maintaining an appropriate balance between the rights of copyright owners and the needs of users 

of copyrighted works.’’ 3 The recommendations were to include any 

legislation the Register of Copyrights considered appropriate to 

achieve that objective. The Copyright Office was specifically directed to consider the following issues: the need for a new exemption, the categories of works to be included in any exemption, the 

appropriate quantitative limitations on the portions of works that 

may be used under any exemption, which parties should be eligible 

for any exemption, which parties should be eligible recipients of 

distance education material under any exemption, the extent to 

which technological protection measures should be mandated as a 

condition of eligibility for any exemption, the extent to which the 

4

4 Register of Copyrights, Report on Copyright and Digital Distance Education (1999). 

5 Id.

6S. 487, 107th Cong., 1st Sess. (2001). See 2000 CONG. REC. S 2008–2009 (daily ed. Mar. 7, 

2001). 

availability of licenses should be considered in assessing the eligibility for any exemption, and other issues the Office considered appropriate. 

The Copyright Office conducted an extensive and intensive process of identifying stakeholders, holding public hearings, soliciting 

comments, conducting research, and consulting with experts in various fields. On June 24, 1999, the Register of Copyrights formally 

presented the findings and recommendations of the Copyright Office to the Subcommittee on Courts and Intellectual Property.4

Among other things, the Copyright Office recommended the following changes: elimination of the requirement of a physical classroom, clarification that the term ‘‘transmission’’ covers digital 

transmissions, expanding the rights covered by the exemption to 

include those needed to accomplish network transmissions, expanding the categories of works exempted from the performance rights 

beyond the current coverage of non-dramatic literary and musical 

works, and creating new safeguards to counteract the risks imposed by digital transmissions.5

On March 7, 2001, Senator Hatch, joined by Senator Leahy, introduced S. 487, the ‘‘Technology, Education and Copyright Harmonization Act of 2001,’’ or the ‘‘TEACH Act,’’ 6 to implement many 

of the Copyright Office recommendations. On March 17, 2001, the 

Senate Judiciary Committee met in executive session to consider S. 

487. An amendment in the nature of a substitute was offered by 

the Chairman Hatch, together with the Ranking Member Leahy, 

which had been developed to implement the purposes of the 

TEACH Act, following extensive discussions with the education and 

copyright owner communities, and with further assistance from the 

Copyright Office. The substitute amendment was adopted by unanimous consent and the bill, as amended, was then ordered to be favorably reported to the full Senate by unanimous consent. On June 

7, 2001, S. 487, as amended, passed the Senate by unanimous consent. 

HEARINGS

The Committee’s Subcommittee on Courts, the Internet, and Intellectual Property held a hearing on S. 487 on June 27, 2001. Testimony was received from the Honorable Marybeth Peters, Register 

of Copyrights, Copyright Office of the United States, Library of 

Congress; Allan Robert Adler, Vice President, Legal & Government 

Affairs, Association of American Publishers, Inc.; and John C. 

Vaughn, Executive Vice President, Association of American Universities. 

COMMITTEE CONSIDERATION

On July 11, 2001, the Subcommittee on Courts, the Internet, and 

Intellectual Property met in open session and ordered favorably reported the bill S. 487, by voice vote, a quorum being present. On 

July 17, 2002, the Committee met in open session and ordered faVerDate Dec 13 2002 10:10 Mar 13, 2003 Jkt 019006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6601 E:\PICKUP\HR687.107 HR687
5

vorably reported the bill S. 487, by voice vote, a quorum being 

present. 

VOTE OF THE COMMITTEE

There were no recorded votes on S. 487. 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee reports that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

PERFORMANCE GOALS AND OBJECTIVES

S. 487 does not authorize funding. Therefore, clause 3(c) of rule 

XIII of the Rules of the House of Representatives is inapplicable. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of House rule XIII is inapplicable because this legislation does not provide new budgetary authority or increased tax 

expenditures. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

S. 487, the following estimate and comparison prepared by the Director of the Congressional Budget Office under section 402 of the 

Congressional Budget Act of 1974:

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, July 26, 2002. 

Hon. F. JAMES SENSENBRENNER, Jr., Chairman, 

Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 487, the Technology, Education, and Copyright Harmonization Act of 2001. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contacts are Ken Johnson (for Federal costs), who can be reached at 226–2860, and Paige Piper/Bach 

(for the private-sector impact), who can be reached at 226–2940. 

Sincerely, 

DAN L. CRIPPEN, Director.

Enclosure

cc: Honorable John Conyers, Jr. 

Ranking Member 

6

S. 487—Technology, Education, and Copyright Harmonization Act 

of 2001. 

S. 487 would modify the exemption under copyright law for 

schools and governments that display and copy literature, music, 

and other material for educational purposes. Copyright laws are 

administered by the Copyright Office. The act also would require 

the Patent and Trademark Office (PTO) to report to the Congress 

within 6 months of enactment on the range of technologies that are 

available to protect copyrighted material that is available in digital 

form. 

Based on information from the Copyright Office and the PTO, 

CBO estimates that implementing S. 487 would have a negligible 

impact on the operating budgets of those agencies. The act would 

not affect direct spending or receipts; therefore, pay-as-you-go procedures would not apply. 

S. 487 contains no intergovernmental mandates as defined in the 

Unfunded Mandates Reform Act (UMRA) and would impose no 

costs on State, local, or tribal governments. 

S. 487 would impose a private-sector mandate, as defined by 

UMRA. CBO estimates that the direct cost of the mandates would 

fall well below the annual threshold established by UMRA for private-sector mandates ($115 million in 2002, adjusted annually for 

inflation). 

S. 487 would impose a private-sector mandate as defined by 

UMRA on copyright owners. The act would limit the right of copyright owners to collect compensation under copyright law for use of 

certain secondary materials by educators in classes offered over the 

Internet. It would clarify existing law to exempt the digital transmission of such materials used in distance learning from copyright 

control. According to information from the U.S. Copyright Office 

and industry sources, compensation currently received by copyright 

owners from the use of those materials is minimal. CBO estimates, 

therefore, that the direct cost of the mandate, measured as net income forgone, would fall well below the annual threshold established by UMRA for private-sector mandates ($115 million in 2002, 

adjusted annually for inflation). 

On May 29, 2001, CBO transmitted a cost estimate for S. 487 as 

ordered reported by the Senate Committee on the Judiciary on May 

17, 2001. The two versions of the act are nearly identical, and the 

estimated costs are the same. Both versions of the bill contain the 

same private-sector mandate. 

The CBO staff contacts for this estimate are Ken Johnson (for 

Federal costs), who can be reached at 226–2860, and Paige Piper/

Bach (for the private-sector impact), who can be reached at 226–

2940. This estimate was approved by Peter H. Fontaine, Deputy 

Assistant Director for Budget Analysis. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of the rule XIII of the Rules of the 

House of Representatives, the Committee finds the authority for 

this legislation in article I, section 8 of the Constitution. 

7

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

SEC. 1. EDUCATION USE COPYRIGHT EXEMPTION. 

Subsection (a): Short Title 

This section provides that this act may be cited as the ‘‘Technology, Education and Copyright Harmonization Act of 2001.’’

Subsection (b): Exemption of Certain Performances and Displays for 

Educational Uses 

Summary 

Section 1(b) of the TEACH Act amends section 110(2) of the 

Copyright Act to encompass performances and displays of copyrighted works in digital distance education under appropriate circumstances. The section expands the scope of works to which the 

amended section 110(2) exemption applies to include performances 

of reasonable and limited portions of works other than nondramatic 

literary and musical works (which are currently covered by the exemption), while also limiting the amount of any work that may be 

displayed under the exemption to what is typically displayed in the 

course of a live classroom session. At the same time, section 1(b) 

removes the concept of the physical classroom, while maintaining 

and clarifying the requirement of mediated instructional activity 

and limiting the availability of the exemption to mediated instructional activities of governmental bodies and ‘‘accredited’’ non-profit 

educational institutions. This section of the act also limits the 

amended exemption to exclude performances and displays given by 

means of a copy or phonorecord that is not lawfully made and acquired, which the transmitting body or institution knew or had reason to believe was not lawfully made and acquired. In addition, section 1(b) requires the transmitting institution to apply certain technological protection measures to protect against retention of the 

work and further downstream dissemination. The section also clarifies that participants in authorized digital distance education 

transmissions will not be liable for any infringement by reason of 

transient or temporary reproductions that may occur through the 

automatic technical process of a digital transmission for the purpose of a performance or display permitted under the section. Obviously, with respect to such reproductions, the distribution right 

would not be infringed. Throughout the act, the term ‘‘transmission’’ is intended to include transmissions by digital, as well as 

analog means. 

Works Subject to the Exemption and Applicable Portions 

The TEACH Act expands the scope of the section 110(2) exemption to apply to performances and displays of all categories of copyrighted works, subject to specific exclusions for works ‘‘produced or 

marketed primarily for performance or display as part of mediated 

instructional activities transmitted via digital networks’’ and performance or displays ‘‘given by means of a copy or phonorecord that 

is not lawfully made and acquired,’’ which the transmitting body or 

institution ‘‘knew or had reason to believe was not lawfully made 

and acquired.’’

Unlike the current section 110(2), which applies only to public 

performances of non-dramatic literary or musical works, the 

8

amendment would apply to public performances of any type of 

work, subject to certain exclusions set forth in section 110(2), as 

amended. The performance of works other than non-dramatic literary or musical works is limited, however, to ‘‘reasonable and limited portions’’ of less than the entire work. What constitutes a ‘‘reasonable and limited’’ portion should take into account both the nature of the market for that type of work and the pedagogical purposes of the performance. 

In addition, because ‘‘display’’ of certain types of works, such as 

literary works using an ‘‘e-book’’ reader, could substitute for traditional purchases of the work (e.g., a text book), the display exemption is limited to ‘‘an amount comparable to that which is typically 

displayed in the course of a live classroom setting.’’ This limitation 

is a further implementation of the ‘‘mediated instructional activity’’ 

concept described below, and recognizes that a ‘‘display’’ may have 

a different meaning and impact in the digital environment than in 

the analog environment to which section 110(2) has previously applied. The ‘‘limited portion’’ formulation used in conjunction with 

the performance right exemption is not used in connection with the 

display right exemption, because, for certain works, display of the 

entire work could be appropriate and consistent with displays typically made in a live classroom setting (e.g., short poems or essays, 

or images of pictorial, graphic, or sculptural works, etc.). 

The exclusion for works ‘‘produced or marketed primarily for performance or display as part of mediated instructional activities 

transmitted via digital networks’’ is intended to prevent the exemption from undermining the primary market for (and, therefore, impairing the incentive to create, modify or distribute) those materials whose primary market would otherwise fall within the scope 

of the exemption. The concept of ‘‘performance or display as part 

of mediated instructional activities’’ is discussed in greater detail 

below, in connection with the scope of the exemption. It is intended 

to have the same meaning and application here, so that works produced or marketed primarily for activities covered by the exemption would be excluded from the exemption. The exclusion is not intended to apply generally to all educational materials or to all materials having educational value. The exclusion is limited to materials whose primary market is ‘‘mediated instructional activities,’’ 

i.e., materials performed or displayed as an integral part of the 

class experience, analogous to the type of performance or display 

that would take place in a live classroom setting. At the same time, 

the reference to ‘‘digital networks’’ is intended to limit the exclusion to materials whose primary market is the digital network environment, not instructional materials developed and marketed for 

use in the physical classroom. 

The exclusion of performances or displays ‘‘given by means of a 

copy or phonorecord that is not lawfully made and acquired’’ under 

title 17 is based on a similar exclusion in the current language of 

section 110(1) for the performance or display of an audiovisual 

work in the classroom. Unlike the provision in section 110(1), the 

exclusion here applies to the performance or display of any work. 

But, as in section 110(1), the exclusion applies only where the 

transmitting body or institution ‘‘knew or had reason to believe’’ 

that the copy or phonorecord was not lawfully made and acquired. 

As noted in the Register’s Report, the purpose of the exclusion is 

9

7 REGISTER OF COPYRIGHTS, REPORT ON COPYRIGHT AND DIGITAL DISTANCE 

EDUCATION (1999) at 159. 

to reduce the likelihood that an exemption intended to cover only 

the equivalent of traditional concepts of performance and display 

would result in the proliferation or exploitation of unauthorized 

copies.7An educator would typically purchase, license, rent, make a 

fair-use copy, or otherwise lawfully acquire the copy to be used, 

and works not yet made available in the market (whether by distribution, performance or display) would, as a practical matter, be 

rendered ineligible for use under the exemption. 

Eligible Transmitting Entities 

As under the current section 110(2), the exemption, as amended, 

is limited to government bodies and non-profit educational institutions. However, due to the fact that, as the Register’s Report points 

out, ‘‘nonprofit educational institutions’’ are no longer a closed and 

familiar group, and the ease with which anyone can transmit educational material over the Internet, the amendment would require 

non-profit educational institutions to be ‘‘accredited’’ in order to 

provide further assurances that the institution is a bona fide educational institution. It is not otherwise intended to alter the eligibility criteria. Nor is it intended to limit or affect any other provision of the Copyright Act that relates to non-profit educational institutions or to imply that non-accredited educational institutions 

are necessarily not bona fide. 

‘‘Accreditation’’ is defined in section 1(b)(2) of the TEACH Act in 

terms of the qualification of the educational institution. It is not 

defined in terms of particular courses or programs. Thus, an accredited nonprofit educational institution qualifies for the exemption with respect to its courses whether or not the courses are part 

of a degree or certificate-granting program. 

Qualifying Performances and Displays; Mediated Instructional Activities 

Subparagraph (2)(A) of the amended exemption provides that the 

exemption applies to a performance or display made ‘‘by, at the direction of, or under the actual supervision of an instructor as an 

integral part of a class session offered as a regular part of . . . systematic mediated instructional activity.’’ The subparagraph includes several requirements, all of which are intended to make 

clear that the transmission must be part of mediated instructional 

activity. First, the performance or display must be made by, under 

the direction of, or under the actual supervision of an instructor. 

The performance or display may be initiated by the instructor. It 

may also be initiated by a person enrolled in the class as long as 

it is done either at the direction, or under the actual supervision, 

of the instructor. ‘‘Actual’’ supervision is intended to require that 

the instructor is, in fact, supervising the class activities, and that 

supervision is not in name or theory only. It is not intended to require either constant, real-time supervision by the instructor or 

pre-approval by the instructor for the performance or display. 

Asynchronous learning, at the pace of the student, is a significant 

and beneficial characteristic of digital distance education, and the 

10

concept of control and supervision is not intended to limit the qualification of such asynchronous activities for this exemption. 

The performance or display must also be made as an ‘‘integral 

part’’ of a class session, so it must be part of a class itself, rather 

than ancillary to it. Further, it must fall within the concept of ‘‘mediated instructional activities’’ as described in section 1(b)(2) of the 

TEACH Act. This latter concept is intended to require the performance or display to be analogous to the type of performance or display that would take place in a live classroom setting. Thus, although it is possible to display an entire textbook or extensive 

course-pack material through an e-book reader or similar device or 

computer application, this type of use of such materials as supplemental reading would not be analogous to the type of display that 

would take place in the classroom, and therefore would not be authorized under the exemption. 

The amended exemption is not intended to address other uses of 

copyrighted works in the course of digital distance education, including student use of supplemental or research materials in digital form, such as electronic course packs, e-reserves, and digital library resources. Such activities do not involve uses analogous to 

the performances and displays currently addressed in section 

110(2). 

The ‘‘mediated instructional activity’’ requirement is thus intended to prevent the exemption provided by the TEACH Act from 

displacing textbooks, course packs or other material in any media, 

copies or phonorecords of which are typically purchased or acquired 

by students for their independent use and retention (in most postsecondary and some elementary and secondary contexts). The Committee notes that in many secondary and elementary school contexts, such copies of such materials are not purchased or acquired 

directly by the students, but rather are provided for the students’ 

independent use and possession (for the duration of the course) by 

the institution. 

The limitation of the exemption to systematic ‘‘mediated instructional activities’’ in subparagraph (2)(A) of the amended exemption 

operates together with the exclusion in the opening clause of section 110(2) for works ‘‘produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks’’ to place boundaries on the exemption. 

The former relates to the nature of the exempt activity; the latter 

limits the relevant materials by excluding those primarily produced 

or marketed for the exempt activity. 

One example of the interaction of the two provisions is the application of the exemption to textbooks. Pursuant to subparagraph 

(2)(A), which limits the exemption to ‘‘mediated instructional activities,’’ the display of material from a textbook that would typically 

be purchased by students in the local classroom environment, in 

lieu of purchase by the students, would not fall within the exemption. Conversely, because textbooks typically are not primarily produced or marketed for performance or display in a manner analogous to performances or display in the live classroom setting, they 

would not per se be excluded from the exemption under the exclusion in the opening clause. Thus, an instructor would not be precluded from using a chart or table or other short excerpt from a 

textbook different from the one assigned for the course, or from emVerDate Dec 13 2002 10:10 Mar 13, 2003 Jkt 019006 PO 00000 Frm 00010 Fmt 6659 Sfmt 6601 E:\PICKUP\HR687.107 HR687
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8 Id. at 80. 

phasizing such an excerpt from the assigned textbook that had 

been purchased by the students. 

The requirement of subparagraph (2)(B), that the performance or 

display must be directly related and of material assistance to the 

teaching content of the transmission, is found in current law, and 

has been retained in its current form. As noted in the Register’s 

Report 8, this test of relevance and materiality connects the copyrighted work to the curriculum, and it means that the portion performed or displayed may not be performed or displayed for the 

mere entertainment of the students, or as unrelated background 

material. 

Limitations on Receipt of Transmissions 

Unlike current section 110(2), the TEACH Act amendment removes the requirement that transmissions be received in classrooms or similar places devoted to instruction unless the recipient 

is an officer or employee of a governmental body or is prevented by 

disability or special circumstances from attending a classroom or 

similar place of instruction. One of the great potential benefits of 

digital distance education is its ability to reach beyond the physical 

classroom, to provide quality educational experiences to all students of all income levels, in cities and rural settings, in schools 

and on campuses, in the workplace, at home, and at times selected 

by students to meet their needs. 

In its place, the act substitutes the requirements in subparagraph (2)(C) that the transmission be made solely for and, to the 

extent technologically feasible, the reception be limited to students 

officially enrolled in the course for which the transmission is made 

or governmental employees as part of their official duties or employment. This requirement is not intended to impose a general requirement of network security. Rather, it is intended to require 

only that the students or employees authorized to be recipients of 

the transmission should be identified, and the transmission should 

be technologically limited to such identified authorized recipients 

through systems such as password access or other similar measures. 

Additional Safeguards to Counteract New Risks 

The digital transmission of works to students poses greater risks 

to copyright owners than transmissions through analog broadcasts. 

Digital technologies make possible the creation of multiple copies, 

and their rapid and widespread dissemination around the world. 

Accordingly, the TEACH Act includes several safeguards not currently present in section 110(2). 

First, a transmitting body or institution seeking to invoke the exemption is required to institute policies regarding copyright and to 

provide information to faculty, students, and relevant staff members that accurately describe and promote compliance with copyright law. Further, the transmitting organization must provide notice to recipients that materials used in connection with the course 

may be subject to copyright protection. These requirements are intended to promote an environment of compliance with the law, inform recipients of their responsibilities under copyright law, and 

12

decrease the likelihood of unintentional and uninformed acts of infringement. 

Second, in the case of a digital transmission, the transmitting 

body or institution is required to apply technological measures to 

prevent: (i) retention of the work in accessible form by recipients 

to which it sends the work for longer than the class session; and 

(ii) unauthorized further dissemination of the work in accessible 

form by such recipients. Measures intended to limit access to authorized recipients of transmissions from the transmitting body or 

institution are not addressed in this subparagraph (2)(D). Rather, 

they are the subjects of subparagraph (2)(C). 

Third, in the case of a digital transmission, the transmitting 

body or institution must not ‘‘engage in conduct that could reasonably be expected to interfere with technological measures used by 

copyright owners to prevent such retention or unauthorized further 

dissemination.’’ As the context makes clear, this requirement refers 

to conduct that is taken in connection with the particular transmissions subject to the exemption, rather than to the broader activities of the transmitting body or institution generally. Further, 

like the other provisions under paragraph (2)(D)(ii), the requirement has no legal effect other than as a condition of eligibility for 

the exemption. Thus, it is not otherwise enforceable to preclude or 

prohibit conduct. 

The requirement that technological measures be applied to limit 

retention for no longer than the ‘‘class session’’ refers back to the 

requirement that the performance be made as an ‘‘integral part of 

a class session.’’ The duration of a ‘‘class session’’ in asynchronous 

distance education would generally be that period during which a 

student is logged on to the server of the institution or governmental body making the display or performance, but is likely to 

vary with the needs of the student and with the design of the particular course. It does not mean the duration of a particular course 

(i.e., a semester or term), but rather is intended to describe the 

equivalent of an actual single face-to-face mediated class session 

(although it may be asynchronous and one student may remain online or retain access to the performance or display for longer than 

another student as needed to complete the class session). Although 

flexibility is necessary to accomplish the pedagogical goals of distance education, the Committee expects that a common sense construction will be applied so that a copy or phonorecord displayed 

or performed in the course of a distance education program would 

not remain in the possession of the recipient in a way that could 

substitute for acquisition or for uses other than use in the particular class session. Conversely, the technological protection measure in subparagraph (2)(D)(ii) refers only to retention of a copy or 

phonorecord in the computer of the recipient of a transmission. The 

material to be performed or displayed may, under the amendments 

made by the act to section 112 and with certain limitations set 

forth therein, remain on the server of the institution or government 

body for the duration of its use in one or more courses, and may 

be accessed by a student each time the student logs on to participate in the particular class session of the course in which the display or performance is made. The reference to ‘‘accessible form’’ recognizes that certain technological protection measures that could 

be used to comply with subparagraph (2)(D)(ii) do not cause the deVerDate Dec 13 2002 10:10 Mar 13, 2003 Jkt 019006 PO 00000 Frm 00012 Fmt 6659 Sfmt 6601 E:\PICKUP\HR687.107 HR687
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struction or prevent the making of a digital file; rather they work 

by encrypting the work and limiting access to the keys and the period in which such file may be accessed. On the other hand, an 

encrypted file would still be considered to be in ‘‘accessible form’’ 

if the body or institution provides the recipient with a key for use 

beyond the class session. 

Paragraph (2)(D)(ii) provides, as a condition of eligibility for the 

exemption, that a transmitting body or institution apply technological measures that reasonably prevent both retention of the 

work in accessible form for longer than the class session and further dissemination of the work. This requirement does not impose 

a duty to guarantee that retention and further dissemination will 

never occur. Nor does it imply that there is an obligation to monitor recipient conduct. Moreover, the ‘‘reasonably prevent’’ standard 

should not be construed to imply perfect efficacy in stopping retention or further dissemination. The obligation to ‘‘reasonably prevent’’ contemplates an objectively reasonable standard regarding 

the ability of a technological protection measure to achieve its purpose. Examples of technological protection measures that exist 

today and would reasonably prevent retention and further dissemination, include measures used in connection with streaming to prevent the copying of streamed material, such as the Real Player ‘‘Secret Handshake/Copy Switch’’ technology discussed in Real Networks v. Streambox, 2000 WL 127311 (Jan. 18, 2000) or digital 

rights management systems that limit access to or use of encrypted 

material downloaded onto a computer. It is not the Committee’s intent, by noting the existence of the foregoing, to specify the use of 

any particular technology to comply with subparagraph (2)(D)(ii). 

Other technologies will certainly evolve. Further, it is possible that, 

as time passes, a technological protection measure may cease to 

reasonably prevent retention of the work in accessible form for 

longer than the class session and further dissemination of the 

work, either due to the evolution of technology or to the widespread 

availability of a hack that can be readily used by the public. In 

those cases, a transmitting organization would be required to apply 

a different measure. 

Nothing in section 110(2) should be construed to affect the application or interpretation of section 1201. Conversely, nothing in section 1201 should be construed to affect the application or interpretation of section 110(2). 

Transient and Temporary Copies 

Section 1(b)(2) of the TEACH Act implements the Register’s recommendation that liability not be imposed upon those who participate in digitally transmitted performances and displays authorized 

under this subsection by reason of copies or phonorecords made 

through the automatic technical process of such transmission, or 

any distribution resulting therefrom. Certain modifications have 

been made to the Register’s recommendations to accommodate instances where the recommendation was either too broad or not sufficiently broad to cover the appropriate activities. 

The third paragraph added to the amended exemption under section 1(b)(2) of the TEACH Act recognizes that transmitting organizations should not be responsible for copies or phonorecords made 

by third parties, beyond the control of the transmitting organizaVerDate Dec 13 2002 10:10 Mar 13, 2003 Jkt 019006 PO 00000 Frm 00013 Fmt 6659 Sfmt 6601 E:\PICKUP\HR687.107 HR687
14

9 Id. at 151. 

tion. However, consistent with the Register’s concern that the exemption should not be transformed into a mechanism for obtaining 

copies 9, the paragraph also requires that such transient or temporary copies stored on the system or network controlled or operated by the transmitting body or institution shall not be maintained on such system or network ‘‘in a manner ordinarily accessible to anyone other than anticipated recipients’’ or ‘‘in a manner 

ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary to facilitate the transmissions’’ 

for which they are made. 

The liability of intermediary service providers remains governed 

by section 512, but, subject to section 512(d) and section 512(e), 

section 512 will not affect the legal obligations of a transmitting 

body or institution when it selects material to be used in teaching 

a course, and determines how it will be used and to whom it will 

be transmitted as a provider of content. 

The paragraph refers to ‘‘transient’’ and ‘‘temporary’’ copies consistent with the terminology used in section 512, including transient copies made in the transmission path by conduits and temporary copies, such as caches, made by the originating institution, 

by service providers or by recipients. Organizations providing digital distance education will, in many cases, provide material from 

source servers that create additional temporary or transient copies 

or phonorecords of the material in storage known as ‘‘caches’’ in 

other servers in order to facilitate the transmission. In addition, 

transient or temporary copies or phonorecords may occur in the 

transmission stream, or in the computer of the recipient of the 

transmission. Thus, by way of example, where content is protected 

by a digital rights management system, the recipient’s browser 

may create a cache copy of an encrypted file on the recipient’s hard 

disk, and another copy may be created in the recipient’s random access memory at the time the content is perceived. The third paragraph added to the amended exemption by section 1(b)(2) of the 

TEACH Act is intended to make clear that those authorized to participate in digitally transmitted performances and displays as authorized under section 110(2) are not liable for infringement as a 

result of such copies created as part of the automatic technical 

process of the transmission if the requirements of that language 

are met. The paragraph is not intended to create any implication 

that such participants would be liable for copyright infringement in 

the absence of the paragraph. 

Subsection (c): Ephemeral Recordings 

One way in which digitally transmitted distance education will 

expand America’s educational capacity and effectiveness is through 

the use of asynchronous education, where students can take a class 

when it is convenient for them, not at a specific hour designated 

by the body or institution. This benefit is likely to be particularly 

valuable for working adults. Asynchronous education also has the 

benefit of proceeding at the student’s own pace, and freeing the instructor from the obligation to be in the classroom or on call at all 

hours of the day or night. 

15

10 Id. at xvi.

In order for asynchronous distance education to proceed, organizations providing distance education transmissions must be able to 

load material that will be displayed or performed on their servers, 

for transmission at the request of students. The TEACH Act’s 

amendment to section 112 makes that possible. 

Under new subsection 112(f)(1), transmitting organizations authorized to transmit performances or displays under section 110(2) 

may load on their servers copies or phonorecords of the performance or display authorized to be transmitted under section 110(2) 

to be used for making such transmissions. The subsection recognizes that it often is necessary to make more than one ephemeral 

recording in order to efficiently carry out digital transmissions, and 

authorizes the making of such copies or phonorecords. 

Subsection 112(f) imposes several limitations on the authorized 

ephemeral recordings. First, they may be retained and used solely 

by the government body or educational institution that made them. 

No further copies or phonorecords may be made from them, except 

for copies or phonorecords that are authorized by subsection 110(2), 

such as the copies that fall within the scope of the third paragraph 

added to the amended exemption under section 1(b)(2) of the 

TEACH Act. The authorized ephemeral recordings must be used 

solely for transmissions authorized under section 110(2). 

The Register’s Report notes the sensitivity of copyright owners to 

the digitization of works that have not been digitized by the copyright owner. As a general matter, subsection 112(f) requires the use 

of works that are already in digital form. However, the Committee 

recognizes that some works may not be available for use in distance education, either because no digital version of the work is 

available to the institution, or because available digital versions 

are subject to technological protection measures that prevent their 

use for the performances and displays authorized by section 110(2). 

In those circumstances where no digital version is available to the 

institution or the digital version that is available is subject to technological measures that prevent its use for distance education 

under the exemption, section 112(f)(2) authorizes the conversion 

from an analog version, but only conversion of the portion or 

amount of such works that are authorized to be performed or displayed under section 110(2). It should be emphasized that subsection 112(f)(2) does not provide any authorization to convert print 

or other analog versions of works into digital format except as permitted in section 112(f)(2). 

Relationship to Fair Use and Contractual Obligations 

As the Register’s Report makes clear ‘‘critical to [its conclusion 

and recommendations] is the continued availability of the fair use 

doctrine.’’ 10 Nothing in this act is intended to limit or otherwise to 

alter the scope of the fair use doctrine. As the Register’s Report explains: 

Fair use is a critical part of the distance education landscape. Not only instructional performances and displays, 

but also other educational uses of works, such as the provision of supplementary materials or student downloading of 

course materials, will continue to be subject to the fair use 

16

11 Id. at 161–162. 12 Id.

doctrine. Fair use could apply as well to instructional 

transmissions not covered by the changes to section 110(2) 

recommended above. Thus, for example, the performance 

of more than a limited portion of a dramatic work in a distance education program might qualify as fair use in appropriate circumstances.11

The Register’s Report also recommends that the legislative history of legislation implementing its distance education requirements make certain points about fair use. Specifically, this legislation is enacted in recognition of the following:

a. The fair use doctrine is technologically neutral and applies to activities in the digital environment; and

b. the lack of established guidelines for any particular 

type of use does not mean that fair use is inapplicable.12

While the Register’s Report also examined and discussed a variety of licensing issues with respect to educational uses not covered 

by exemptions or fair use, these issues were not included in the Report’s legislative recommendations that formed the basis for the 

TEACH Act. It is the view of the Committee that nothing in this 

act is intended to affect in any way the relationship between express copyright exemptions and license restrictions. 

Nonapplicability to Secure Tests 

The Committee is aware and deeply concerned about the phenomenon of school officials who are entrusted with copies of secure 

test forms solely for use in actual test administrations and using 

those forms for a completely unauthorized purpose, namely helping 

students to study the very questions they will be asked on the real 

test. The Committee does not in any way intend to change current 

law with respect to application of the Copyright Act or to undermine or lessen in any way the protection afforded to secure tests 

under the Copyright Act. Specifically, this section would not authorize a secure test acquired solely for use in an actual test administration to be used for any other purpose. 

Subsection (d): PTO Report 

The report requested in subsection (d) requests information 

about technological protection systems to protect digitized copyrighted works and prevent infringement. The report is intended for 

the information of Congress and shall not be construed to have any 

effect whatsoever on the meaning, applicability, or effect of any 

provision of the Copyright Act in general or the TEACH Act in particular. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics, 

existing law in which no change is proposed is shown in roman):

17

TITLE 17, UNITED STATES CODE

* * * * * * *

CHAPTER 1—SUBJECT MATTER AND SCOPE OF 

COPYRIGHT 

* * * * * * *

§ 110. Limitations on exclusive rights: Exemption of certain 

performances and displays 

Notwithstanding the provisions of section 106, the following 

are not infringements of copyright: 

(1) * * *

ø(2) performance of a nondramatic literary or musical 

work or display of a work, by or in the course of a transmission, if—

ø(A) the performance or display is a regular part of 

the systematic instructional activities of a governmental 

body or a nonprofit educational institution; and 

ø(B) the performance or display is directly related and 

of material assistance to the teaching content of the transmission; and 

ø(C) the transmission is made primarily for—

ø(i) reception in classrooms or similar places normally devoted to instruction, or 

ø(ii) reception by persons to whom the transmission is directed because their disabilities or other 

special circumstances prevent their attendance in 

classrooms or similar places normally devoted to instruction, or 

ø(iii) reception by officers or employees of governmental bodies as a part of their official duties or employment;¿

(2) except with respect to a work produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks, or a performance or display that is given by means of a copy or phonorecord 

that is not lawfully made and acquired under this title, and the 

transmitting government body or accredited nonprofit educational institution knew or had reason to believe was not lawfully made and acquired, the performance of a nondramatic literary or musical work or reasonable and limited portions of any 

other work, or display of a work in an amount comparable to 

that which is typically displayed in the course of a live classroom session, by or in the course of a transmission, if—

(A) the performance or display is made by, at the direction of, or under the actual supervision of an instructor as 

an integral part of a class session offered as a regular part 

of the systematic mediated instructional activities of a governmental body or an accredited nonprofit educational institution; 

(B) the performance or display is directly related and 

of material assistance to the teaching content of the transmission; 

18

(C) the transmission is made solely for, and, to the extent technologically feasible, the reception of such transmission is limited to—

(i) students officially enrolled in the course for 

which the transmission is made; or 

(ii) officers or employees of governmental bodies as 

a part of their official duties or employment; and 

(D) the transmitting body or institution—

(i) institutes policies regarding copyright, provides 

informational materials to faculty, students, and relevant staff members that accurately describe, and promote compliance with, the laws of the United States relating to copyright, and provides notice to students that 

materials used in connection with the course may be 

subject to copyright protection; and 

(ii) in the case of digital transmissions—

(I) applies technological measures that reasonably prevent—

(aa) retention of the work in accessible 

form by recipients of the transmission from the 

transmitting body or institution for longer 

than the class session; and 

(bb) unauthorized further dissemination 

of the work in accessible form by such recipients to others; and 

(II) does not engage in conduct that could reasonably be expected to interfere with technological 

measures used by copyright owners to prevent such 

retention or unauthorized further dissemination;

The exemptions provided under paragraph (5) shall not be taken 

into account in any administrative, judicial, or other governmental 

proceeding to set or adjust the royalties payable to copyright owners for the public performance or display of their works. Royalties 

payable to copyright owners for any public performance or display 

of their works other than such performances or displays as are exempted under paragraph (5) shall not be diminished in any respect 

as a result of such exemption.

In paragraph (2), the term ‘‘mediated instructional activities’’ with respect to the performance or display of a work by 

digital transmission under this section refers to activities that 

use such work as an integral part of the class experience, controlled by or under the actual supervision of the instructor and 

analogous to the type of performance or display that would take 

place in a live classroom setting. The term does not refer to activities that use, in 1 or more class sessions of a single course, 

such works as textbooks, course packs, or other material in any 

media, copies or phonorecords of which are typically purchased 

or acquired by the students in higher education for their independent use and retention or are typically purchased or acquired for elementary and secondary students for their possession and independent use. 

For purposes of paragraph (2), accreditation—

(A) with respect to an institution providing post-secondary education, shall be as determined by a regional or 

national accrediting agency recognized by the Council on 

19

Higher Education Accreditation or the United States Department of Education; and 

(B) with respect to an institution providing elementary 

or secondary education, shall be as recognized by the applicable state certification or licensing procedures. 

For purposes of paragraph (2), no governmental body or accredited nonprofit educational institution shall be liable for infringement by reason of the transient or temporary storage of 

material carried out through the automatic technical process of 

a digital transmission of the performance or display of that material as authorized under paragraph (2). No such material 

stored on the system or network controlled or operated by the 

transmitting body or institution under this paragraph shall be 

maintained on such system or network in a manner ordinarily 

accessible to anyone other than anticipated recipients. No such 

copy shall be maintained on the system or network in a manner 

ordinarily accessible to such anticipated recipients for a longer 

period than is reasonably necessary to facilitate the transmissions for which it was made.

* * * * * * *

§ 112. Limitations on exclusive rights: Ephemeral recordings 

(a) * * *

* * * * * * *

(f)(1) Notwithstanding the provisions of section 106, and without limiting the application of subsection (b), it is not an infringement of copyright for a governmental body or other nonprofit educational institution entitled under section 110(2) to transmit a performance or display to make copies or phonorecords of a work that 

is in digital form and, solely to the extent permitted in paragraph 

(2), of a work that is in analog form, embodying the performance 

or display to be used for making transmissions authorized under 

section 110(2), if—

(A) such copies or phonorecords are retained and used solely by the body or institution that made them, and no further 

copies or phonorecords are reproduced from them, except as authorized under section 110(2); and 

(B) such copies or phonorecords are used solely for transmissions authorized under section 110(2). 

(2) This subsection does not authorize the conversion of print or 

other analog versions of works into digital formats, except that such 

conversion is permitted hereunder, only with respect to the amount 

of such works authorized to be performed or displayed under section 

110(2), if—

(A) no digital version of the work is available to the institution; or 

(B) the digital version of the work that is available to the 

institution is subject to technological protection measures that 

prevent its use for section 110(2).

ø(f)¿ (g) The transmission program embodied in a copy or phonorecord made under this section is not subject to protection as a 

derivative work under this title except with the express consent of 

20

the owners of copyright in the preexisting works employed in the 

program. 

* * * * * * *

CHAPTER 8—COPYRIGHT ARBITRATION ROYALTY 

PANELS 

* * * * * * *

§ 802. Membership and proceedings of copyright arbitration 

royalty panels 

(a) * * *

* * * * * * *

(c) ARBITRATION PROCEEDINGS.—Copyright arbitration royalty 

panels shall conduct arbitration proceedings, subject to subchapter 

II of chapter 5 of title 5, for the purpose of making their determinations in carrying out the purposes set forth in section 801. The arbitration panels shall act on the basis of a fully documented written record, prior decisions of the Copyright Royalty Tribunal, prior 

copyright arbitration panel determinations, and rulings by the Librarian of Congress under section 801(c). Any copyright owner who 

claims to be entitled to royalties under section 111, 112, 114, 116, 

or 119, any transmitting organization entitled to a statutory license 

under section ø112(f)¿ 112(g), any person entitled to a statutory license under section 114(d), any person entitled to a compulsory license under section 115, or any interested copyright party who 

claims to be entitled to royalties under section 1006, may submit 

relevant information and proposals to the arbitration panels in proceedings applicable to such copyright owner or interested copyright 

party, and any other person participating in arbitration proceedings may submit such relevant information and proposals to 

the arbitration panel conducting the proceedings. In ratemaking 

proceedings, the parties to the proceedings shall bear the entire 

cost thereof in such manner and proportion as the arbitration panels shall direct. In distribution proceedings, the parties shall bear 

the cost in direct proportion to their share of the distribution. 

* * * * * * *

MARKUP TRANSCRIPT

BUSINESS MEETING 

WEDNESDAY, JULY 17, 2002

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:05 a.m., in Room 

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. [Chairman of the Committee] presiding. 

Chairman SENSENBRENNER. The Committee will be in order. 

* * * * * * *

The next item on the agenda is the adoption of Senate 487, the 

Technology Education, and Copyright Harmonization Act of 2001. 

21

The Chair recognizes the gentleman from North Carolina, Mr. 

Coble, for a motion. 

Mr. COBLE. Mr. Chairman, the Subcommittee on Courts, the 

Internet, and Intellectual Property reports favorably the bill S. 487 

and moves its favorable recommendation to the full House. 

Chairman SENSENBRENNER. Without objection, S. 487 will be 

considered as read and open for amendment at any point. 

[The bill, S. 487, follows:]

22


S487A.eps
23


S487B.eps
24


S487C.eps
25


S487D.eps
26


S487E.eps
27


S487F.eps
28


S487G.eps
29


S487H.eps
30


S487I.eps
31

Chairman SENSENBRENNER. The Chair recognizes the gentleman 

from North Carolina to strike the last word. 

Mr. COBLE. Mr. Chairman, the Copyright Act contains provisions 

outlining permissible uses of copyrighted material for educational 

purposes, such as fair use and other educational exemptions from 

copyright infringement. These provisions were written more than 

two decades ago, however, prior to the advent of digital technologies. Accordingly, the purpose of S. 487 is to update the Copyright Act by appropriately striking a balance between the rights of 

copyright owners and the ability of users to access copyrighted material via the Internet and other media for educational purposes. 

Mr. Chairman and colleagues, this bill is popularly known as the 

Distance Education or the Teach Act. The legislation makes three 

basic changes to current law. 

First, the bill eliminates the current eligibility requirements for 

distance learning exemption that the instruction occur in a physical 

classroom or that special circumstances prevent the attendance of 

students in the classroom. 

Second, the bill clarifies that the distance learning exemption 

covers the transient or temporary copies that may occur through 

the automatic technical process of transmitting material over the 

Internet. 

Third, and finally, S. 487 amends the Copyright Act to allow educators to show reasonable and limited portions of dramatic literary 

and musical works, audiovisual works, and sound recordings, in addition to the complete versions of non-dramatic literary and musical works which are currently exempted. 

Mr. Chairman, S. 487 is a product of bipartisan negotiation and 

in my opinion will greatly assist the education community without 

compromising the rights of copyright holders. I urge its adoption 

and yield back the balance of my time. 

Chairman SENSENBRENNER. The gentleman from Michigan, Mr. 

Conyers, moves to strike the last word. 

Mr. CONYERS. Thank you. On this side, we completely agree with 

the gentleman from North Carolina, Mr. Coble, and I have a statement I’d like to enter into the record. 

Chairman SENSENBRENNER. Without objection, all Members may 

enter opening statements in the record at this point. 

[The prepared statement of Mr. Conyers follows:]

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN

There are many divides when it comes to who should have access to copyrighted 

content and how, but we all can agree that teachers and students should have access to books, music, and other works that are used to enhance the learning process 

and spur academic debate. This is important because more and more people are 

using computer for educational reasons, from doing research to communicating with 

teachers over the Internet. 

Unfortunately, the distance learning exemption of the Copyright Act, which is designed to let teachers distribute copyrighted content to students without paying royalties, has not kept up with the times. The law does not let educators use copyrighted content in online classrooms, where teachers and students meet on a virtual 

campus instead of an actual one. 

Fortunately, the content owners and educators were able to arrive at this compromise legislation to update the exemption. S. 487 makes several important 

changes to current law. First, it eliminates the requirement for the distance learning exemption that the instruction occur in a physical classroom. This is important 

because, in today’s learning environment, many students attend class in cyberspace. 

32

Second, to make sure no one takes advantage of the exemption and distributes 

the content to make money, schools claiming the exemption must not only institute 

policies regarding the use copyrighted content but also ensure they are not used illegally. 

Third, to protect those whose livelihood depends on royalties from distance learning materials themselves, the bill excludes from the exemption any works produced 

or marketed for that purpose. 

Finally, the bill tells the PTO to report to Congress on the availability and development of technological measures to protect copyrighted content from infringement. 

This report will tell us what technologies are available to facilitate distance learning 

while deterring infringement. 

This legislation is an important step in modernizing our educational systems and 

is a remarkable signal of how creators and users of intellectual property can work 

together to resolve their differences. 

I urge my colleagues to vote ‘‘Yes’’ on this legislation.

[The prepared statement of Mr. Berman follows:]

PREPARED STATEMENT OF THE HONORABLE HOWARD L. BERMAN, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. Chairman, 

Thank you for calling this markup on S. 487, the ‘‘Technology, Education and 

Copyright Harmonization Act.’’ I think it is important that we enact this legislation 

before the 107th Congress adjourns, and I commend you for moving forward today. 

This bill represents an excellent compromise reached after much deliberation in 

the Senate. It is my understanding the compromise is so delicate that any amendments could end up scuttling the entire bill. Therefore, I encourage my fellow Committee members to resist the urge to offer even well-meaning amendments. For my 

own part, I will resist the urge to offer an amendment even though there is a strong 

argument to be made that the TEACH Act should be coupled with legislation addressing state sovereign immunity for copyright infringement. 

This bill represents a significant revision of copyright law. Under certain circumstances, it would exempt a variety of entities from copyright infringement liability if they digitize and place online the copyrighted works of others. 

This significant, additional restriction on copyrights is justified by the critical importance and unbounded promise of distance education. With distance education, we 

can help level the playing field by bringing the tools of success to those students 

who have the least access to resources. 

Widespread use of distance education does bring with it many concerns about 

down-stream distribution of copyrighted materials, and it is important to continue 

to incentivize development of new education products. For these reasons, the bill includes requirements for the distance educators to use technology to protect copyrighted materials. 

Legislation works best when the interested parties can find a workable compromise. I appreciate that this bill is the result of much blood, sweat and tears, and 

I fully support the compromise. I urge my colleagues to move this bill without 

amendment. 

I yield back the balance of my time.

[The prepared statement of Mr. Issa follows:]

PREPARED STATEMENT OF THE HONORABLE DARRELL E. ISSA, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA

I am a very strong proponent of Distance Education. I believe this type of learning 

will continue to grow as new technology becomes available and more affordable to 

all of us. 

Last year, Representative Boucher and I worked together to craft H.R. 2000, 

which is the exact text of this Senate Bill 487, but with an added exception for public libraries. 

While I would like to see public libraries become more involved in distance education, especially those serving rural areas, I realize this bill has passed the Senate 

and is on the fast track for passage by the full House. I have received some assurances that public libraries will have protection under S. 487. I will not offer an 

amendment today, but I will make certain that if public libraries are left out of distance education, I will do all I can to remedy the situation in the future.

33

Chairman SENSENBRENNER. Are there amendments? If there are 

not amendments, in the absence of a reporting quorum the previous question is ordered. 

[Intervening business.] 

The Committee now returns to the pending unfinished business 

upon which the previous question was ordered on Senate 487. The 

Chair notes the presence of a reporting quorum. Those in favor of 

reporting the bill favorably will say aye. Opposed, no? 

The ayes appear to have it. The ayes have it and the motion to 

report favorably is agreed to. Without objection, the Chairman is 

authorized to move to go to conference pursuant to House rules. 

Without objection, the staff is directed to make any technical and 

conforming changes, and all Members will be given 2 days, as provided by the House rules, in which to submit additional dissenting, 

supplemental, or minority views.

Æ