I

107TH CONGRESS

1ST SESSION H. R. 2100

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.

IN THE HOUSE OF REPRESENTATIVES

JUNE 7, 2001

Mr. BOUCHER (for himself and Mr. ISSA) introduced the following bill; which

was referred to the Committee on the Judiciary

A BILL

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Twenty-First Century

5 Distance Learning Enhancement Act’’.
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1 SEC. 2. EDUCATIONAL USE COPYRIGHT EXEMPTION.

2 (a) EXEMPTION OF CERTAIN PERFORMANCES AND

3 DISPLAYS FOR EDUCATIONAL USES.—Section 110 of title

4 17, United States Code, is amended—

5 (1) by striking paragraph (2) and inserting the

6 following:

7 ‘‘(2) except with respect to a work produced or

8 marketed primarily for performance or display as

9 part of mediated instructional activities transmitted

10 via digital networks, or a performance or display

11 that is given by means of a copy or phonorecord that

12 is not lawfully made and acquired under this title,

13 and the transmitting government body, accredited

14 nonprofit educational institution, or nonprofit library

15 knew or had reason to believe was not lawfully made

16 and acquired, the performance of a nondramatic lit17 erary or musical work or reasonable and limited por18 tions of any other work, or display of a work in an

19 amount comparable to that which is typically dis20 played in the course of a live classroom session, by

21 or in the course of a transmission, if—

22 ‘‘(A) the performance or display is made

23 by, at the direction of, or under the actual su24 pervision of an instructor as an integral part of

25 a class session offered as a regular part of the

26 systematic mediated instructional activities of a
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1 governmental body, an accredited nonprofit

2 educational institution, or a nonprofit library;

3 ‘‘(B) the performance or display is directly

4 related and of material assistance to the teach5 ing content of the transmission;

6 ‘‘(C) the transmission is made solely for,

7 and, to the extent technologically feasible, the

8 reception of such transmission is limited to—

9 ‘‘(i) students officially enrolled in the

10 course for which the transmission is made;

11 or

12 ‘‘(ii) officers or employees of govern13 mental bodies as a part of their official du14 ties or employment; and

15 ‘‘(D) the transmitting body or

16 institution—

17 ‘‘(i) institutes policies regarding copy18 right, provides informational materials to

19 faculty, students, and relevant staff mem20 bers that accurately describe, and promote

21 compliance with, the laws of the United

22 States relating to copyright, and provides

23 notice to students that materials used in

24 connection with the course may be subject

25 to copyright protection; and
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1 ‘‘(ii) in the case of digital

2 transmissions—

3 ‘‘(I) applies technological meas4 ures that, in the ordinary course of

5 their operations, prevent—

6 ‘‘(aa) retention of the work

7 in accessible form by recipients of

8 the transmission from the trans9 mitting body or institution for

10 longer than the class session; and

11 ‘‘(bb) unauthorized further

12 dissemination of the work in ac13 cessible form by such recipients

14 to others; and

15 ‘‘(II) does not engage in conduct

16 that could reasonably be expected to

17 interfere with technological measures

18 used by copyright owners to prevent

19 such retention or unauthorized further

20 dissemination;’’; and

21 (2) by adding at the end the following:

22 ‘‘In paragraph (2), the term ‘mediated instruc23 tional activities’ with respect to the performance or

24 display of a work by digital transmission under this

25 section refers to activities that use such work as an
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1 integral part of the class experience, controlled by or

2 under the actual supervision of the instructor and

3 analogous to the type of performance or display that

4 would take place in a live classroom setting. The

5 term does not refer to activities that use, in 1 or

6 more class sessions of a single course, such works as

7 textbooks, course packs, or other material in any

8 media, copies or phonorecords of which are typically

9 purchased or acquired by the students in higher edu10 cation for their independent use and retention or are

11 typically purchased or acquired for elementary and

12 secondary students for their possession and inde13 pendent use.

14 ‘‘For purposes of paragraph (2),

15 accreditation—

16 ‘‘(A) with respect to an institution pro17 viding post-secondary education, shall be as de18 termined by a regional or national accrediting

19 agency recognized by the Council on Higher

20 Education Accreditation or the United States

21 Department of Education; and

22 ‘‘(B) with respect to an institution pro23 viding elementary or secondary education, shall

24 be as recognized by the applicable state certifi25 cation or licensing procedures.
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1 ‘‘For purposes of paragraph (2), no govern2 mental body, accredited nonprofit educational insti3 tution, or nonprofit library shall be liable for in4 fringement by reason of the transient or temporary

5 storage of material carried out through the auto6 matic technical process of a digital transmission of

7 the performance or display of that material as au8 thorized under paragraph (2). No such material

9 stored on the system or network controlled or oper10 ated by the transmitting body or institution under

11 this paragraph shall be maintained on such system

12 or network in a manner ordinarily accessible to any13 one other than anticipated recipients. No such copy

14 shall be maintained on the system or network in a

15 manner ordinarily accessible to such anticipated re16 cipients for a longer period than is reasonably nec17 essary to facilitate the transmissions for which it

18 was made.’’.

19 (b) EPHEMERAL RECORDINGS.—

20 (1) IN GENERAL.—Section 112 of title 17,

21 United States Code, is amended—

22 (A) by redesignating subsection (f) as sub23 section (g); and

24 (B) by inserting after subsection (e) the

25 following:
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1 ‘‘(f)(1) Notwithstanding the provisions of section

2 106, and without limiting the application of subsection

3 (b), it is not an infringement of copyright for a govern4 mental body, nonprofit educational institution, or non5 profit library entitled under section 110(2) to transmit a

6 performance or display to make copies or phonorecords of

7 a work that is in digital form and, solely to the extent

8 permitted in paragraph (2), of a work that is in analog

9 form, embodying the performance or display to be used

10 for making transmissions authorized under section

11 110(2), if—

12 ‘‘(A) such copies or phonorecords are retained

13 and used solely by the body or institution that made

14 them, and no further copies or phonorecords are re15 produced from them, except as authorized under sec16 tion 110(2); and

17 ‘‘(B) such copies or phonorecords are used sole18 ly for transmissions authorized under section

19 110(2).

20 ‘‘(2) This subsection does not authorize the conver21 sion of print or other analog versions of works into digital

22 formats, except that such conversion is permitted here23 under, only with respect to the amount of such works au24 thorized to be performed or displayed under section

25 110(2), if—
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1 ‘‘(A) no digital version of the work is available

2 to the institution; or

3 ‘‘(B) the digital version of the work that is

4 available to the institution is subject to technological

5 protection measures that prevent its use for section

6 110(2).’’.

7 (2) TECHNICAL AND CONFORMING AMEND8 MENT.—Section 802(c) of title 17, United States

9 Code, is amended in the third sentence by striking

10 ‘‘section 112(f)’’ and inserting ‘‘section 112(g)’’.

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