With schools closed through the rest of the academic year and reopening in September up in the air for most districts across the U.S., the home has become the classroom. The transition from online learning has been easier for some than others, but testimonials from teachers describe how their reliance on the physical classroom has made the transition online particularly difficult.
While chemistry or biology teachers face logistical hurdles that can’t be overcome, those who rely on books or other copyright-protected content face relatively minor technical constraints made onerous or insurmountable by legal ones. Here are three reforms to copyright law that would make distance learning far easier:
- Expand the definition of “face-to-face” under 17 USC 110(1): It is not copyright infringement to perform or display a work in the course of “face-to-face teaching activities,” but these interactions are impossible now, making 110(1) a dead letter. There are allowances for distance learning under 110(2) as part of the TEACH Act, but these come with technological requirements that may be difficult or impossible for school districts or teachers to meet given the urgent nature of the crisis. Expanding 110(1) to include a Zoom or Skype classroom lesson would go a long way.
- Expand fair use: 17 USC 107 codifies “fair use,” a statute designed to cover a broad class of uses that are not infringing. A work used for educational purposes weighs in favor of fair use, but other factors may outweigh this. Changing the statute to either (a) give extra weight in favor of fair use by K-12 schools or (b) recognize that the copying use of already-purchased materials has a diminished effect on the market for the work would help tip the scales in favor of educational institutions.
- Legalize controlled digital lending (CDL): 17 USC 109(a) codifies the “first-sale doctrine” (also called “exhaustion”) where the sale of works protected by copyright voids any claims the rights holder has over that specific copy of the work. However, while the theoretical possibility of digital first-sale is technically an open legal question, the mechanics of online file transfer makes this practice functionally impossible under current law. A safe harbor for K-12 schools that scan and lend out as many copies of a given textbook as they have on their shelves for the course of the school year or semester would allow school districts to make use of works they already paid for. The broader scope of this change would justify the incorporation of TEACH Act-style controls to qualify for the safe harbor.
These are, in the grand scheme of copyright law and the COVID-19 outbreak, minor changes. But these are the little inconveniences or ambiguities in the law that can add up and make a big difference in the lives of those trying to educate our kids during this crisis.
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