Current law is not helpful. It is dated and offers little in the way of guidance for the recent explosion of educational technology. Three exemptions currently define digital distance education uses: two specific instructional exemptions in section 110, and the fair use doctrine of section 107. This is what we have:

• Limitations and Restrictions -- Section 110 exempts the performance or display of any work in the course of face-to-face teaching activities. Section 110(2) covers the forms of distance education existing when the statute was enacted in 1976, exempting certain performances or displays in the course of instructional broadcasting.
• Limited Offerings -- It applies only to the performance of nondramatic literary and musical works. It does not authorize the acts of reproduction or distribution involved in this type of digital transmission
• Limited Reasons --The performance or display must be made as a regular part of systematic instructional activity by a nonprofit educational institution or governmental body and it must be directly related and of material assistance to the teaching content
• Limited Sites -- It must be made primarily for reception in classrooms or places of instruction, or to persons whose disabilities or other special circumstances prevent their attendance in classrooms, or to government employees.
• Limited Eligiblity -- Students who choose to take a distance course without special circumstances that prevent their attendance in classrooms may not qualify as eligible recipients.
• Up to Intrepretation -- Fair use is the broadest and most general limitation on the exclusive rights of copyright owners, and can exempt distance education uses not covered by the specific instructional exemptions. While it is flexible and technology-neutral, it requires courts to examine all the facts and circumstances, weighing four nonexclusive statutory factors: the subject matter of the course, the nature of the educational institution, the ways in which the instructor uses the material, and the kinds and amounts of materials used.

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Will Distance Education Instruction be protected by Fair Use?

The Copyright Office has offered the following recommendations: (Go to http://lcweb.loc.gov/copyright/docs/regstat72000.html to see the full document)

Define Transmission	Clarify meaning of "transmission." It should be clarified that the term "transmission" in section 110(2) covers transmissions by digital means as well as analog.
Limited rights of distribution and reproduction	Currently the exemption only allows performance and display. Digital transmissions over computer networks would not be excused. The rights of reproduction and/or distribution should not be added in their entirety, but only to the extent technologically required in order to transmit the performance or display authorized by the exemption.
Mediated instruction	The problem: if a student can access individual works asynchronously and an entire work can be viewed on a computer screen, repeatedly, whenever a student chooses and for an indefinite duration, the performance or display could conceivably function as a substitute for the purchase of a copy. Therefore the language should specify that the performance or display must be made by or at the direction of an instructor to illustrate a point in, or as an integral part of, the equivalent of a class session in a particular course.
Eliminate the boundries	Eliminate requirement of physical classroom. The nature of digital distance education, where the goal is to permit instruction to take place anywhere, makes the current limitation obsolete.
Limited audience	Permitting transmissions to be made, regardless of their physical location to only the students officially enrolled in the course.
Develop safeguards and copyright policies	Any copies permitted under the exemption should be retained for no longer than reasonably necessary to complete the transmission. Those using the exemption should institute policies regarding copyright, notifying faculty, students, and relevant staff members of copyright law and that materials may be subject to copyright protection.
Protect materials	Technological measures should be in place to control unauthorized uses. These measures should protect against both unauthorized access and unauthorized dissemination after access has been obtained. Because no technology is one hundred percent effective, only measures that "reasonably" prevent these acts should be required. In addition, protections applied by the copyright owners should not be removed.
Non-profit institutions	An educational institution must be "nonprofit" to be eligible for the exemption in section.
Expand categories	Expand the categories of works covered beyond nondramatic literary and musical works, but provide limitations and safeguards to protect the integrity of, and market for, the work.
More restrictions	If audiovisual and other works are added, it should be done in a limited way. The section could be amended to allow performances of categories in addition to nondramatic literary and musical works, but not of entire works. The portion performed would have to be the subject of study in the course, rather than mere entertainment for the students, or unrelated background or transitional material. It nevertheless may be advisable to exclude those works that are produced primarily for instructional use.
Lawful copies	Require use of lawful copies.
New ephemeral recording exemption	An educator could upload a copyrighted work onto a server, to be subsequently transmitted to students enrolled in her course. Various limits should be imposed including the requirements that any such copy be retained and used solely by the entity that made it; that no further copies be reproduced from it; that the copy be used solely for authorized transmissions and that retention of the copy be limited in time, remaining on the server in a form accessible to students only for the duration of the course. Technological protections applied by the copyright owner to prevent subsequent unlawful copying should not be removed.