Expand coverage of rights to meet technological necessities. In particular, digital transmissions involve the making of incidental copies to make the transmission—or display and performance—possible. The Copyright Office is not suggesting that educators should be allowed to make copies of works for students in distance learning: "Rather, the amendment should include these rights only to the extent technologically required in order to transmit the performance or display authorized by the exemption." Specifically, the Copyright Office is contemplating the "transient copies" that are "part of the automatic technical process" of the transmission.

Allow displays and performances in the context of "mediated instruction." The Copyright Office identified concerns with the prospect of "electronic reserves" or other arrangements whereby entire works are made available to students, thus potentially substituting for sales of those works. To facilitate uses of works for educational purposes, however, the report recommends that works be used in a context where the instructor is illustrating a point or where the use is an integral part of a course structure.

Expand the scope of allowed materials. The recommendations would eliminate the current proscription of "dramatic" works and audiovisual works. On the other hand, the proposal would allow only "limited portions" of those works in a manner consistent with the "nature of the market for that type of work and the pedagogical purposes of the use." For example, an instructor could use "the equivalent of a film clip, rather than a substantial part of the film." This approach appears consistent with the recommendation that the materials be used in the context of "mediated instruction," during which only portions may typically be needed for discussion and analysis. Whole works may, of course, be available to students in the library, at reserve desks, or in the bookstore. They may also be placed on a web-delivery system with permission from the copyright owner.

Eliminate the requirement of transmitting the educational experience solely to classrooms and similar places. The Copyright Office is recommending that Congress allow educators to transmit the content of distance-education courses to enrolled students, regardless of their physical location.

Implement safeguards to reduce risks to the copyright owners. First, the transient copies that result from the digital transmission may be retained only as needed to complete the transmission. Second, the institution must develop policies that describe copyright law and must provide those policies to students, faculty, and others. Third, the transmission to students must include a notice that the content of the transmission may be subject to copyright protection. Fourth, the institution should implement technological protections that reasonably prevent unauthorized access and further dissemination of the material.

Allow retention of a copy of the distance-education program on a server for access limited to students in the course during the duration of the course. Students would therefore be able to review earlier materials and vary their pace of learning. That copy would be retained by the institution, and no further copies would be allowed.

Continue to apply fair use to activities outside the exemption for distance education. Examples of possible fair use include: converting a work from analog to digital format for transmission, and using no more than a "limited portion" of a work. The report also emphasizes that "guidelines" interpreting fair use are not the law and may at best provide a "safe harbor" from potential liability. Although the Copyright Office appears critical of the effort to develop guidelines in the recently concluded "Conference on Fair Use," the Copyright Office remains hopeful that future understandings of fair use may emerge from discussions among diverse stakeholders.

Inform faculty members of limits on the use of works in distance education. Given the importance of academic freedom in planning courses, the university is not likely to review individual course content. Instead, the university may prefer to inform educators about the copyright implications of their work and offer standards for appropriate course planning. The university may accomplish that goal through the distribution of literature or by sponsoring seminars or workshops for instructors.

Develop a policy that describes and explains relevant copyright law, and assure that the policy is disseminated widely to all faculty and students.

Include a warning statement about copyright on the "front page" of all distance-education transmissions.

Retain all distance-education courses on university-owned servers or other delivery equipment.

Assure that only enrolled students are able to access the transmission.

Preserve technological devices or systems that copyright owners may use to limit misuse of their works, when those works are used in distance education.

Prepare to address the applicability of "fair use" to activities, such as electronic reserves, that are not specifically addressed by the exemption for distance education. For the current IU policy on fair use, please visit http://www.indiana.edu/~ufc/circulars/97-98/U16-98.htm. For information about how fair use applies to educational activities, visit the Copyright Management Center website at http://www.copyright.iupui.edu.