Copyright Exemptions for Distance Education: 17 U.S.C. § 110(2), the Technology, Education, and Copyright Harmonization Act of 2002

Copyright Exemptions for Distance Education:
17 U.S.C., Section 110(2), the Technology, Education,
and Copyright Harmonization Act of 2002
July 6, 2006
Brian T. Yeh and Robin Jeweler
Legislative Attorneys
American Law Division

Copyright Exemptions for Distance Education:
17 U.S.C., Section 110(2), the Technology, Education, and
Copyright Harmonization Act of 2002
The Technology, Education, and Copyright Harmonization Act of 2002
(TEACH Act) updated 17 U.S.C. § 110(2), the first distance education exemption
under copyright law, to permit accredited nonprofit institutions to transmit
copyrighted works during distance education programs without having to obtain the
prior permission of the copyright holder, under certain limited conditions and in
accordance with specified statutory procedures. This report provides a summary and
analysis of the provisions of the TEACH Act, including an explanation of the types
of works exempted for distance education purposes, the conditions and limitations
placed on the ability to use exempted works, the exemption eligibility requirements
for distance educators and students, the limitations on copyright infringement liability
of eligible claimants, and the mandatory procedural requirements that transmitting
institutions must follow to safeguard copyrighted materials from infringement.
In addition, the report examines the potential effect on the rights granted by the
TEACH Act that may be posed by the proposed “broadcast flag,” a content protection
technology designed to limit copying, editing, retention, and other activities regarding
the use of digitally broadcast television programs. Congressional interest in
authorizing the use of the broadcast flag for digital television transmissions has raised
the concern of librarians and educators over whether such technology may impede
their ability to use digital television content for educational purposes, including
distance education programs pursuant to the TEACH Act.
Legislation introduced in the 109th Congress, S. 2686, the Communications,
Consumer’s Choice, and Broadband Deployment Act of 2006, includes a provision
that would grant the Federal Communications Commission (FCC) the authority to
adopt regulations giving television broadcasters the right to use the broadcast flag in
their digital transmissions. At the same time, however, the bill directs the FCC to
issue regulations that would expressly permit the use of broadcast-flagged digital
television transmissions by government bodies and accredited nonprofit educational
institutions for distance education purposes under the TEACH Act.

In troduction ..................................................1
Background ..................................................1
The TEACH Act .............................................3
Expanded Works..........................................4
Limitations ...............................................4
Eligible Claimants for the Exemption..........................5
Conditions on Permitted Use.................................5
Impact on Fair Use.........................................6
Ephemeral Copies.........................................6
Conditions on Recipients....................................7
Mandatory Preconditions for the Exemption.....................7
The Broadcast Flag............................................9
S. 2686, the Communications, Consumer’s Choice, and
Broadband Deployment Act of 2006......................10

Copyright Exemptions for Distance
Education: 17 U.S.C., Section 110(2), the
Technology, Education, and Copyright
Harmonization Act of 2002
In November 2002, as part of the comprehensive 21st Century Department of
Justice Appropriations Authorization Act, President Bush signed the Technology,
Education, and Copyright Harmonization Act (hereinafter TEACH Act, or the Act)1
into law. The TEACH Act amended 17 U.S.C. § 110(2), the first distance education
exemption under copyright law, with an intricate update. The TEACH Act expands
the reach of § 110(2) to accommodate educational use of copyrighted works while
preserving the limitations set forth in the Digital Millennium Copyright Act (DMCA)2
in order to minimize additional risks to copyright holders. This report provides an
analysis of the provisions of the TEACH Act, including an explanation of the types
of works exempted for distance education purposes, the conditions and limitations
placed on the ability to use exempted works, the exemption eligibility requirements
for distance educators and students, the limitations on copyright infringement liability
of eligible claimants, and the mandatory procedural requirements that transmitting
institutions must follow to safeguard copyrighted materials from infringement. The
report also examines the potential effect on the rights granted by the TEACH Act that
may be posed by the proposed “broadcast flag,” a content protection technology
designed to limit copying, editing, retention, and other activities regarding the use of
digitally broadcast television programs.
The Copyright Act provides copyright holders with the exclusive right to control
reproduction, distribution, public performance, and display of their copyrighted
works.3 Unauthorized use of copyrighted material constitutes an infringement of
these rights, unless the use is permitted by a statutory exception. Although the “fair

1 P.L. 107-273, § 13301 (November 2, 2002).
2 17 U.S.C. §§ 1201-1205. The DMCA added a new chapter 12 to the Copyright Act
entitled “Copyright Protection and Management Systems.” Subject to relatively narrow
exceptions, this law makes it illegal to circumvent a technological copyright-control
measure. For more information on the DMCA , see CRS Report RL31827, “Digital Rights”
and Fair Use in Copyright Law, by Robin Jeweler.
3 17 U.S.C. § 106.

use” defense may be the most widely known exception,4 the Copyright Act provides
other express statutory limitations on a copyright holder’s exclusive rights. For
example, libraries and archives are expressly permitted to make reproductions for
specified archival or circulating purposes.5 17 U.S.C. § 110 provides additional
limitations on a copyright holder’s exclusive rights to perform6 or display7 a work.
17 U.S.C. § 110 is entitled “Limitations on exclusive rights: Exemption of
certain performance and displays.” A statutory exemption means that Congress has
determined that certain copyrighted works may be used for a specific purpose without
permission of a copyright holder. Among the exemptions encompassed in § 110 are
those dealing with face-to-face classroom instructional activities and transmissions
for instructional purposes in distance education. The first subsection, § 110(1),
addresses the in-class use of
[a] performance or display of a work by an instructor or students in the course
of face-to-face teaching activities of a nonprofit educational institution, or in a8
classroom or similar place devoted to instruction.
In non-classroom based instruction, § 110(2) includes a provision for the
transmission of materials in distance education uses. Early distance education
programs were mail-based courses for self-study. With the advent of television,
many courses were broadcast in closed-circuit formats. The technology behind the
Internet now allows for real-time video and audio streaming for students to
participate in educational exchanges.9
The basic exemption for distance education was originally enacted as part of the
Copyright Act of 1976 to permit performances and displays of copyrighted works for
distance education instruction without a need to obtain a license or rely on fair use.
Prior to this exemption, the doctrine of “fair use” was relied on to use copyrighted
material in the educational context. Although the Copyright Act expressly permits
the fair use of a copyrighted work by the public for limited purposes such as
criticism, teaching, comment, scholarship, or research, the reach of the doctrine is not

4 17 U.S.C. § 107.
5 17 U.S.C. § 108.
6 Under 17 U.S.C. § 101, to “perform” a work would be to “recite, render, play, dance, or
act it, by means of any device or process or, in the case of a motion picture or other
audiovisual work, to show its images in any sequence or to make the sounds accompanying
it audible.”
7 Under 17 U.S.C. § 101, to “display” a work means “to show a copy of it, either directly or
by means of a film, slide, television image, or any other device or process or, in the case of
a motion picture or other audiovisual work, to show individual images nonsequentially.”
8 17 U.S.C. § 110(1).
9 See Robert Thornburg, “The Impact of Copyright Law on Distance Education Programs:
How Fair Use and the CONFU Guidelines May Shape the Future of Academia,” 27 S. ILL.
U. L. J. 321, 324-331 (2003).

always clear, because it is an “equitable rule of reason” that courts apply when
determining whether an infringing use of a work is “fair” in any particular context.10
Upon passage of the DMCA in 1998, Congress directed the U.S. Copyright
Office to study and recommend the promotion of distance education through digital
technologies while balancing the rights of copyright owners and the interests of those
using copyrighted material.11 The Copyright Office issued its report in 1999.12 To
facilitate distance education using digital media, the Office suggested, among other
things, the following:
!elimination of a physical classroom requirement,
!clarification of the term “transmission” to cover digital
!expansion of rights covered by the exemption to include those
needed to accomplish network transmissions,
!expansion of categories of works exempted from the performance
rights beyond current coverage of nondramatic literary and music
works, and
!creation of new safeguards to counteract the risks imposed by digital
Pursuant to the recommendations of the Copyright Office, Congress sought to
enact legislation that would alter § 110(2) to include provisions specifically for
distance education and digital transmissions. In March 2001, Senator Orrin Hatch
introduced S. 487, the TEACH Act proposal, to
allow[ ] 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 in14
exploiting works in a digital format.
Passing the Senate in June 2001, S. 487 was incorporated into H.R. 2215, the 21st
Century Department of Justice Appropriations Authorization Act. H.R. 2215
authorized funding for the Justice Department, modified its enforcement powers, and

10 17 U.S.C. § 107. In addition, a four-part test described in § 107 provides guidance to
courts that must decide what constitutes fair use of a copyrighted work in a particular
context. Factors to be considered are (1) the purpose and character of the use, (2) the nature
of the copyrighted work, (3) the amount and substantiality of the portion used as it relates
to the whole work, and (4) the effect of the use upon the potential market or value of the
work. Id.
11 P.L. 105-304, § 403 (October 28, 1998).
(May 1999), available online at [].
13 S.Rept. 107-31, 107th Cong., 1st Sess. 5-6 (2001).
14 Id. at 3.

amended other laws, including copyright law. After passing the House in July 2001,
H.R. 2215 passed the Senate in October 2002 and was signed into law in November


As amended by the TEACH Act, § 110(2) now encompasses broadcasting of
digital transmissions during synchronous and asynchronous distance education.
Synchronous distance education programs are real-time performance programs where
students and educators communicate via an electronic medium. Asynchronous
distance education permits students to access materials at a time of their choosing,
typically over the Internet.15
Expanded Works. Works permitted to be used for digital transmission
during a distance educational broadcast now include —
!performances of nondramatic literary or musical work, excluding
operas, music videos, and musicals, in their entirety;
!any other work, if only reasonable and limited portions of the
performance are used; and
!displays of any work comparable to the use typical in face-to-face
displays .16
Although what constitutes a “reasonable and limited portion” of a work is not defined
in the statute, the legislative history of the Act suggests that determining what
amount is permissible should take into account the nature of the market for that type17
of work and the instructional purposes of the performance. For example, the
exhibition of an entire film may possibly constitute a “reasonable and limited”
demonstration if the film’s entire viewing is exceedingly relevant toward achieving
a educational goal; however, the likelihood of an entire film portrayal being18
“reasonable and limited” may be rare.
Limitations. The TEACH Act places two primary exceptions on the types of
material subject to the distance education exemption. First, materials that are
produced or marketed, including textbooks and compilations, for the express purpose
of distance education are excluded from the general exemption.19 Thus, this
exception seeks to preserve the general market for distance education materials as
well as the incentives to create and distribute such material.

15 CRAIG JOYCE, ET AL., COPYRIGHT LAW § 906[A][2] (5th ed. 2000).
16 17 U.S.C. § 110(2).
17 S.Rept. 107-31 at 7-8.
19 17 U.S.C. § 110(2).

The second exception provides that the exemption is inapplicable if the
performance or display comes from a copy20 that is not lawfully made or acquired.21
An inadvertent acquisition of an unlawful copy may not result in a disqualification
from the exemption. However, actual knowledge or having a “reason to believe” that
a copy is illegitimate may constitute an unlawful acquisition.22
Eligible Claimants for the Exemption. Only a governmental body or an
accredited nonprofit educational institution can invoke the distance education23
exemption. The Act defines “accreditation.” State certification and licensing
procedures accredit institutions of elementary or secondary education. Regional or
national agencies, recognized by the Council on Higher Education Accreditation or
the United States Department of Education, accredit postsecondary institutions with24
respect to an institution as a whole, not on course offerings alone.
Conditions on Permitted Use. Section 110(2) further establishes
conditions for a permitted use of a display or performance. First, the performance
must be “directly related and of material assistance to the teaching content of the
transmission.”25 According to the Act’s legislative history, the drafters intended
relevance and materiality to connect the copyrighted work with the educational use.26
If the work is used as entertainment or as unrelated background, then materiality of
the work would be inadequate.27
Second, the performances must be “made by, at the direction of, or under the
actual supervision of an instructor as an integral part of a class session.”28 The
legislative history indicates that either an instructor or a student may initiate the
performance or display.29
“Actual supervision” in a distance learning context does not have the same
meaning that may be ascribed to in-classroom-based instruction. The supervision
requirement is flexible in distance education because asynchronous learning seldom
occurs under an instructor’s real-time supervision. The TEACH Act drafters sought

20 A copy is a material object that allows a work to be perceived, reproduced, or otherwise
communicated directly or with the aid of a machine. 17 U.S.C. § 101.
21 17 U.S.C. § 110(2).
22 Id.
23 17 U.S.C. § 110(2)(A).
24 17 U.S.C. § 110.
25 17 U.S.C. § 110(2)(B).
26 S.Rept. 107-31 at 10-11.
27 Id.
28 17 U.S.C. § 110(2)(A).
29 S.Rept. 107-31 at 9.

not to limit asynchronous learning and therefore do not require “actual supervision”
in these environments.30
Further, the performance must be “offered as a regular part of the systematic
mediated instructional activities” of qualifying entities.31 The TEACH Act defines
these activities to consist of integral parts of the class experience, controlled by the
instructor, that are similar to the type of performance that would take place in a live
classroom setting.32 The Act adjusts its restrictions accordingly. Materials excluded
from the “mediated instructional activities” context are “textbooks, course packs, or
other material in any media” typically purchased or owned by students for their own
use. 33
Impact on Fair Use. The determination of a legitimate fair use of a
copyrighted work is generally both fact- and case-specific. The Copyright Office and
the Senate Judiciary Committee, however, are quite explicit in expressing the view
that nothing in the amended exemption for distance education should be construed
as altering the scope and applicability of fair use:
Fair use is a critical part of the distance education landscape. Not only
instructional performances and displays, but also other educational materials or
student downloading of course materials, will continue to be subject to the fair
use doctrine. Fair use [applies] as well to instructional transmissions not covered
by the changes to section 110(2) ... above. Thus for example, the performance
of more than a limited portion of a dramatic work in a distance education34
program might qualify as fair use in appropriate circumstances.
Ephemeral Copies. In addition to 17 U.S.C. § 110, the TEACH Act amends

17 U.S.C. § 112, entitled “Limitations on exclusive rights: Ephemeral recordings.”

An ephemeral recording is a copy of a work made for the purposes of later
transmission by a broadcasting organization entitled to transmit the work. It adds a
new subsection (f) to permit an educational institution transmitting an authorized
performance or display under § 110(2) to load copies or phonorecords of the
performance or display on its servers for transmission at the request of students. The
provision intends to facilitate asynchronous education.
However, the allowance for ephemeral copies does not authorize the wholesale
conversion of print or other analog versions of works into digital formats. A
permitted conversion in this circumstance will be limited to the amount of the work
authorized under § 110(2) and, according to the Senate Judiciary Committee, only

30 Id.
31 17 U.S.C. § 110(2)(A).
32 17 U.S.C. § 110.
33 Id. However, because they are excepted from the § 110(2) exception, materials produced
or marketed primarily for the express purpose of distance education are necessarily excluded
from consideration under “mediated instructional activities.”
34 S.Rept. 107-31 at 15, citing the REPORT ON COPYRIGHT AND DIGITAL AND DISTANCE
EDUCATION, supra note 12, at 161-62 (footnote omitted).

if no digital version of the work is available, or the available digital version is
encryp t ed.35
Conditions on Recipients. The TEACH Act restricts the type of recipients
to which a display or performance can be presented. For schools, permissible
recipients are officially enrolled students.36 In government, permissible recipients are37
officers or employees who receive the transmissions in the scope of their duties.
Transmissions must also be made solely for and, to the extent “technologically
feasible,” limited to permitted recipients.38 The TEACH Act drafters attempted to
clarify that sole, technological feasibility does not include
[an] impos[ition of] 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 through39
systems such as password access or other similar measures.
Mandatory Preconditions for the Exemption. Section 110(2)(D)
establishes requirements that the transmitting institution must follow to guard against
copyright infringement of the works used under the distance learning exemption.
The inclusion of such safeguards was deemed necessary, according to the Act’s
drafters, because digital content may be more easily copied and distributed than
material transmitted through analog broadcasts.40
The TEACH Act directs the transmitting institution to institute “policies
regarding copyright.”41 These policies may provide informational materials, requests
for compliance, and notice to students that materials in use may be subject to
copyright protection. As the legislative history suggests, the TEACH Act drafters
intend these policies to promote guidance and compliance rather than to be used as
a threat of punishment for failing to respect copyright rights.42
If the institution uses digital transmissions in distance learning, it must apply
“technological measures”43 that reasonably prevent retention of the work in

35 S.Rept. 107-31 at 14.
36 17 U.S.C. § 110(2)(C)(i).
37 17 U.S.C. § 110(2)(C)(ii).
38 17 U.S.C. § 110(2)(C).
39 S.Rept. 107-31 at 11.
40 H.R. Rept. 107-687, 107th Cong., 2d Sess., at 11 (2002).
41 17 U.S.C. § 110(2)(D)(i).
42 S.Rept. 107-31 at 11.
43 17 U.S.C. § 110(2)(D)(ii)(I). While the TEACH Act remains silent on what constitutes
a technological measure, a Copyright Office report suggested that although unauthorized
downstream copying technologies were being developed, they were not yet in widespread

accessible form for longer than the class session,44 and prevent unauthorized further
dissemination of the work to others.45 Although institutions must ensure that these
two concerns are addressed, they have discretion over the manner of implementation.
The reference to retention “longer than a class session” relates back to earlier
portions of the statute where exemptions for performances are given “as an integral
part of the class session.”46 The legislative history suggests a “class session” in
asynchronous distance education to mean a period during which a student is logged
on to the server of the institution making the display or performance, and is likely to
vary with the needs of the student and with the design of the particular course.47 In
an attempt to clarify, the Senate Judiciary Committee suggested that this “class
session” should resemble an actual face-to-face mediated class session for the
purposes of asynchronous distance education, not a particular time of duration.48 The
legislative history also suggests that the performance or display should not remain in
the possession of the distance education recipient for longer than uses in a particular
class session.
The reference to “accessible form” qualifies technological protection measures.
According to the drafters of the Act, educators could take measures to encrypt the
digital transmission containing the work and limit access to the digital work using a
password; such measures may constitute sufficient protection against excessive
retention. 49
What are the obligations imposed here? The House Report, though not the
Senate Report, extends the possibility that there is no duty to guarantee that retention
and further dissemination of the transmitted material will not occur. Instead, the
obligation of reasonable prevention posits an objective “reasonableness” standard
regarding the ability of technological protection measures to prevent further retention
and dissemination.50 Examples of current protection measures that might suffice are
inhibitors that prevent the copying of streamed material and digital rights
management systems that limit access and use of downloaded materials.51 In

43 (...continued)
use. Promoting Technology in Education: Turbo-Charging the Buses on the Informationthst
Highway; Hearing on S. 487 Before the Senate Comm. on the Judiciary, 107 Cong., 1
Sess. (2001), at 58.
44 17 U.S.C. § 110(2)(D)(ii)(I)(aa).
45 17 U.S.C. § 110(2)(D)(ii)(I)(bb).
46 17 U.S.C. § 110(2)(A).
47 S.Rept. 107-31 at 12.
48 Id.
49 Id.
50 H.R. Rept. 107-687 at 107th Cong., 2d Sess. 13 (2002).
51 Id.

addition, the drafters do not suggest that these measures are exclusive; rather, further
developments may constitute protection measures for purposes of this Act.52
Under the § 110(2) exemptions, a transmitting body may 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.”53
According to the House Report, the “conduct” to which this provision refers is
limited to action taken under the TEACH Act, not to the broader activities of the
transmitting body that do not relate to distance education.54 This requirement also
appears to act only as a condition for eligibility and does not shield conduct that may
be subject to sanctions under other sections of the Copyright Act.55 Those failing to
comport with these requirements simply forfeit the ability to invoke the § 110(2)
exemption against charges of copyright infringement.
The Broadcast Flag
Digital television (DTV) is a new service representing a significant development
in television transmission technology. DTV can provide sharper pictures, a wider
screen, CD-quality sound, better color rendition, multiple video programming, and
a single program of high definition television (HDTV).56
Developing a protocol for transmitting and receiving digital television in a way
that accommodates competing interests of content providers (e.g., movie studios and
television networks) and consumers has proved challenging. Digital content can be
easily duplicated and distributed, especially with the aid of the Internet. Unlike other
types of content, duplication of digital information does not degrade the original. For
example, the quality of a program recorded on an analog VHS tape degrades after
successive copies, but content delivered through a DVD may be copied almost
infinitely with little to no effect on display and sound quality. It is due to the ease
and inexhaustible potential of copying digital media, coupled with the proliferation
of peer-to-peer file-sharing services,57 that content owners approach new DTV
technology with some trepidation.
The broadcast flag was created as a possible solution to prevent users from
unlawfully manipulating or pirating DTV content. The “flag,” an encrypted tag
signal, is buried into a digital transmission. The flag is adaptable: it can create time

52 Id.
53 17 U.S.C. § 110(2)(D)(ii)(II).
54 H.R. Rept. 107-687 at 12.
55 Id.
56 For more information on digital television, see CRS Report RL31260, Digital Television:
An Overview, by Lennard G. Kruger, and CRS Report RS22217, The Digital TV Transition:
A Brief Overview, by Lennard G. Kruger and Linda K. Moore.
57 For more information concerning peer-to-peer file sharing, see CRS Report RL31998,
File-Sharing Software and Copyright Infringement: Metro-Goldwyn-Mayer Studios, Inc.
v. Grokster, Ltd., by Brian T. Yeh and Robin Jeweler.

restrictions on viewing, it can prevent copying, or it can block a person’s ability to
edit a transmission. The broadcast flag is a form of digital rights management, or
If implemented,59 a broadcast flag system is likely to require that all devices
receiving transmissions be flag compliant. Its potential use as an effective DRM for
DTV transmissions was advanced after the Federal Communications Commission
(FCC) determined that broadcast transmissions be digital by December 31, 2006.60
Congressional hearings on the broadcast flag revealed that educators and
librarians who use digital materials in education are concerned that it could frustrate
the utilization of digital television in distance education.61 With the high potential
cost of flag-compliant devices, they feel that the financial and technical burdens that
a broadcast flag regime would place on students and educational institutions may be
S. 2686, the Communications, Consumer’s Choice, and Broadband
Deployment Act of 2006. On May 1, 2006, Senator Ted Stevens introduced S.
2686, which would amend the Communications Act of 1934. Among its many
provisions, the Digital Content Protection Act of 2006 (Title IV, Subtitle C of S.

2686) addresses the regulation of a broadcast flag. This provision represents, in part,

a legislative response to a federal appellate court decision that denied the FCC

58 The technology-based approaches and mechanisms that copyright owners may use to
protect digital content are collectively referred to as DRM. As the name suggests, DRM
applies only to digital media (which would include analog transmissions converted into
digital format). Examples of other DRM include Internet video streaming protections,
encrypted transmissions, and Content Scrambling Systems (CSS) on DVD, all of which limit
the ability of users to copy or further disseminate the work protected by DRM. For more
information on copyright protections and the broadcast flag, see CRS Report RL33797,
Copyright Protection of Digital Television: The Broadcast Video Flag, by Brian T. Yeh.
59 The FCC adopted a rule in November 2003 granting television broadcasters the right to
use the broadcast flag in digital transmissions. However, the American Library Association
and other interested parties filed a lawsuit that challenged the authority of the FCC to
authorize the use of the broadcast flag system. In May 2005, the U.S. Court of Appeals for
the D.C. Circuit vacated the FCC’s order, finding that the agency lacked the statutory
authority to promulgate such a rule. American Library Association v. Federal
Communications Commission, 406 F.3d 689 (D.C. Cir. 2005).
60 Federal Communications Commission, In the Matter of Advanced Television Systems and
Their Impact Upon the Existing Television Broadcast Service: Fifth Report & Order, 12
F.C.C. Rec. 12809, 12811 (1997).
61 The Broadcast and Audio Flag: Hearing Before the Sen. Comm. on Commerce, Science,
and Transportation, 109th Cong., 2nd Sess. (2006) (statement of Jonathan Band, counsel of
the American Library Association), at 1-5, available on June 7, 2006 at
62 Id.

authority to allow the use of the broadcast flag.63 In addition to conferring such
authority upon the FCC, the bill directs the agency to promulgate regulations that
would limit or modify the uses of the broadcast flag under specifically identified
circumstances described in the bill. Section 452 requires the FCC to issue a
regulation that will “permit government bodies or accredited nonprofit educational
institutions to use copyrighted work in distance education courses pursuant to the
Technology, Education, and Copyright Harmonization Act of 2002 and the
amendments made by that Act.”64

63 See supra note 59. For a summary and analysis of the court decision, see CRS Report
RL33797, Copyright Protection of Digital Television: The Broadcast Video Flag, by Brian
T. Yeh.
64 S. 2686, 109th Cong., 2d Sess. (2006)(bill as introduced).