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Copyright Tutorial: Distance education

Using materials online

Many of the differences between face-to-face and distance education teaching were resolved by the enactment of the TEACH Act (Technology, Education, and Copyright Harmonization) in November 2002. It amends Section 110(2) of the Copyright Act. Some provisions of the TEACH include:

  • eliminates classroom requirement
  • allows material to be stored on a server for a limited amount of time
  • expands categories of permitted works to include portions of audiovisual and sound recordings
  • expands the rights to include exemptions necessary to the workings of the Internet
  • requires implementation of safeguards (passwords)
  • requires technological measures to prevent downstreaming reproductions
  • requires end users to be educated in copyright

Some specific changes to 110(2) that are now allowed under TEACH:

  • Performances of nondramatic literary works( no drama or video)
  • Performances of nondramatic musical works (can't do opera)
  • Performances of any other work, including dramatic works and audiovisual works, but only in "reasonable and limited portions *
  • Displays of any work "in an amount comparable to that which is typically displayed in the course of a live classroom session

Some works are specifically excluded:

  • Works that are marketed "primarily for performance or display as part of mediated instructional activities transmitted via digital networks"
  • Performances or displays given by means of copies "not lawfully made and acquired" under the U.S. Copyright Act, if the educational institution "knew or had reason to believe" that they were not lawfully made and acquired.

There are requirements of the institution and the instructor to implement the TEACH act provisions:

  • Access must be limited to currently enrolled students only and will be removed at the end of a semester.
  • Copyright information and policies must be in place and available at the accredited institution.
  • Notice to students that materials used in connection with the course may be subject to copyright protection
  • Technological controls on storage and dissemination
  • Limited long-term retention of copies

This law is not intended to permit scanning and uploading of full or lengthy works, stored on a website, for students to access throughout the semester-even for private study in connection with a formal course.

The TEACH Act includes a prohibition against the conversion of materials from analog into digital formats, except under the following circumstances:

  • The amount that may be converted is limited to the amount of appropriate works that may be performed or displayed, pursuant to the revised Section 110(2)
  • A digital version of the work is not "available to the institution," or a digital version is available, but it is secured behind technological protection measures that prevent its availability for performing or displaying in the distance-education program consistent with Section 110(2).

The TEACH Act is still being evaluated by copyright experts. Georgia Harper has also posed a paper on the University of Texas Copyright Crash Course website about the TEACH Act. 

Remember, you can still use the Fair Use factors to incorporate a work into your class if it is beyond the scope of the TEACH Act.

*Reasonable and limited portions

The definition of 'reasonable and limited portions' has not yet been determined by courts or by precedence. In her book Complete Copyright, Carrie Russell states:

"The use of dramatic literary works--those works with a dramatic element like an opera or play--and any other work (including audiovisual works) is limited to smaller, discrete portions of the work unless performing or displaying the entire work is essential to the course. For example, an instructor teaching the course "Films of John Ford" probably needs to show one of more John Ford films in their entirety to meet course goals. In the rare instance where it is necessary to transmit a digital copy of a film via a computer network to students in remote locations, TEACH could also apply, but only if the digital copy is necessary to meet pedagogical goals."

Each request to digitize and transmit a video will be evaluated on its own merits by the Media Librarian, Copyright Officer and the requesting faculty member. Consider whether the entire work is necessary for pedagogical goals. The Library will consider both Fair Use and the ARL Best Practices in Fair Use for Academic and Research Libraries.

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Lori Bryan