New Copyright Exemptions for Distance Educators:
The Technology, Education and Copyright Harmonization (TEACH) Act. ERIC
by Russell, Carrie
With the recent passage of a new law eagerly-awaited by educators, the
same type of copyright protected materials that a teacher would ordinarily
use in the physical classroom can now--in general--be used in the digital
classroom. The "Technology, Education and Copyright Harmonization (TEACH)
Act," which President Bush signed into law on November 2, 2002, amends
two sections of the U.S. copyright law that educators rely on when using
copyrighted materials in the classroom without prior permission from the
copyright holder (Section 110 on exemption for performance and displays
and 112 on exemption for ephemeral recordings). TEACH expands existing
exemptions to allow for the digital transmission of copyrighted materials,
including on Web sites, so they may be "viewed" by enrolled students. However,
in order to take advantage of the exemptions, educational institutions
must meet specific obligations outlined in the law. This ERIC Digest outlines
both the privileges and the requirements of TEACH.
MEDIATED INSTRUCTIONAL ACTIVITIES
Teach changes a fundamental aspect of public performance and display
exemptions by recognizing that, in the digital environment, enrolled students
may take courses or receive course-related materials outside of the physical
classroom. Students may receive materials at home on their desktop, from
another educational institution located elsewhere in the country, or in
the school's computer center. The exemptions, however, only apply to "mediated
instructional activities." Mediated instruction, according to the Senate
Report (S. Rep. No. 31, 107th Cong.,1st Sess., 2001) refers to "activities
that use copyrighted materials...integral to the class experience, controlled
by or under the actual supervision of the instructor and analogous to the
type of performance and display that would take place in a live classroom."
Only non-profit, accredited educational institutions can take advantage
of these exemptions. For-profit courses would not apply. Accredited institutions
are post-secondary institutions that are accredited by a regional or national
accreditation agency recognized by the Council on Higher Education or the
United States Department of Education. Elementary and secondary schools
must be recognized by their applicable state certification board or licensing
process in order to take advantage of TEACH.
Copyright holders enjoy exclusive rights of copyright (17 U.S.C. Section
106), that is only they have the statutory right to exercise a copyright,
such as the right to create derivative works or the right to publish and
distribute works. But the law also carves out numerous exemptions that
allow users of copyrighted materials the privilege of exercising a copyright
under certain conditions. Without these copyright exemptions, copyright
holders would enjoy a complete monopoly over the use of their works, which
would restrain the purpose of the copyright law"to advance the progress
of Science and the Useful Arts" (U.S. Const. art. I Section 8, cl. 7).
The TEACH Act allows educators the right to exercise two exclusive rights
of copyright: the right of public performance and the right of public display.
WHAT MATERIALS CAN BE USED?
The new legislation allows the display and performance of non-dramatic
literary works (charts, journal and periodical articles, maps, some types
of music, etc.), limited portions of dramatic literary works (those works
that have a "story," such as plays, some motion pictures, operas, etc.)
and any work in ways that would typically occur in the physical, live classroom.
Dramatic literary works have always been a problematic category since feature
motion pictures are included in this category. The motion picture industry
has been hesitant to loosen up restrictions on dramatic literary works
for educational purposes, but the new law does allows that portions of
these works can be used in courses. Since the law leaves open the possibility
that any work may be displayed (whether in part of in its entirety), educators
could show an entire dramatic literary work in a mediated instructional
environment, if that work is necessary for the course. For example, film
history courses may require that an entire film be viewed.
MATERIALS THAT CANNOT BE USED
Works that are produced for the sole purpose of being used in distance
education (digital courses available for purchase) are not included in
TEACH. These works have a clearly established market and should be lawfully
acquired. In addition, educators cannot use materials in the digital classroom
in order to avoid purchase. Students enrolled in the class must purchase
required reading, such as textbooks, course packs and consumable workbooks.
However, a teacher may choose to use a small portion from required course
materials in the digital classroom, such as a graph that appears in the
purchased textbook. Furthermore, TEACH reminds educators that they should
not use copies of works that are unlawfully made, such as pirated copies
of music or films downloaded from peer-to-peer file sharing sources. Finally,
a note about course reserves: Under the new law, course reserves (whether
in electronic or print form) are considered "supplemental course resources"
and are not applicable to the TEACH exemptions. This does not mean that
course reserves are unlawful or cannot be used for teaching. It only means
that under TEACH, reserve materials are not considered "required" or essential
to the mediated instructional activities described in TEACH.
Teach also allows educators to copy an analog work to a digital format
for use in the classroom without the prior permission of the copyright
holder when a digital version of the work is not available or when a digital
version exists, but cannot be used because of technological controls that
block access. Only the portion of the work necessary to meet the pedagogical
need should be converted to the digital format. The digitized copy cannot
be shared with other institutions and no further copies can be made.
RETENTION OF COPYRIGHT PROTECTED WORKS FOR THE INSTRUCTIONAL SESSION
All copyrighted works used for mediated instructional activities should
be retained only for as long as necessary, that is however long it may
take to accomplish the pedagogical goals of the class session. For some
courses, teachers may need to make copyrighted works available to the students
throughout the course. Others may find it more conducive to their teaching
method to have copyrighted materials available for shorter periods of time.
The law is not specific about how long a class session might be. This lack
of clarity in the law allows educational institutions some latitude on
how they might describe a "session." For college courses, that session
might be the semester, for others a session might be a week or a day. Needless
to say, educational institutions should not take unreasonable advantage
of the ambiguous "class session" term and should act in the spirit of the
Educational institutions should not jump head first into applying TEACH
exemptions without considering and addressing important institutional requirements.
These duties can be categorized in two groups: copyright education and
technological protection of copyrighted works.
Educational institutions must have in place a copyright policy and copyrighted
educational materials for teachers, staff and students. Congress recognized
that many people do not understand copyright law and what activities are
or are not lawful. While the true test of infringement can only be adjudicated
in the courts, institutions can go a long way in providing and promoting
copyright policies and other materials to their communities. The law does
not define what should be included in institutional policies, but does
state that the policies should be accurate, promote lawful behavior, and
provide notice to students that materials used in class may be protected
In the best of circumstances, copyright policies should be created with
a wide variety of input from all stakeholders so that all concerns and
ideas are heard and considered. Faculty, teachers, and (yes) students should
be included since they are the users of copyrighted materials in the class.
Librarians and media specialists should also be included because they retain
copyrighted works, assist faculty with course materials and tend to know
the most about the copyright law at the institution. It would be unfortunate
if policies and educational materials were created in a vacuum or drafted
by legal counsel without input. Legal counsel often takes an overly strict
approach to copyright law, which is understandable since its main purpose
is avoiding litigation. But it should be recognized that educational institutions
have been allowed special and specific allowances in the copyright law
since they are so essential to the progress of science and the useful arts.
If your school or college already has a copyright policy, it would be a
good idea to review the policy and update educational materials to include
TEACH allowances and requirements. Any institution that does not have a
copyright policy and informational materials on copyright cannot take advantage
of the TEACH exemptions.
The second institutional obligation is a tougher nut to crack and will
depend on the approach taken by and resources available to the educational
institution. TEACH requires that only enrolled students have access to
works protected by copyright. In addition, TEACH requires that the educational
institution employ technological protection measures to prevent the further
copying and distribution of the copyrighted works used in the digital class.
Of course, it is not feasible to guarantee that works will not be copied
or distributed; there is no known technology that can achieve this. However,
institutions should use all means at their disposal to control access,
copying and distribution. Currently many schools, colleges and universities
use "password protection" to control access to course materials. Some institutions
also use various authentication tools, such as student "PINs" (personal
identification numbers) required for school enrollment. For example, a
student cannot register for a class unless they have a PIN that ensures
they are officially recognized by the institution and enrolled.
The law does not specify how far an institution should go to protect
works, but certainly as much as can possibly be done should be pursued.
Available resources affect the choices that institutions make in this regard.
As technology advances and as the market for protecting technology develops,
one can expect that there will be more technology solutions for institutions
to consider. Ultimately, institutions will have to make a decision if they
believe the technological protection mechanisms available to them are sufficient
to reasonably protect copyrighted works. If the institution does not feel
confident with its technology solution, that institution cannot take advantage
the TEACH exemptions according to the law.
FAIR USE CONTINUES TO BE AN OPTION
The TEACH exemptions do not rule out the possibility of using "fair
use" as a rationale for the display and public performance of copyright
protected works in the digital classroom. This means that if TEACH exemptions
do not go far enough in allowing the use of materials in the class, fair
use can be considered and may justify the use. In addition, if your institution
cannot meet the requirements of TEACH both the development of copyright
policies and informational materials and a reasonable means to protect
access, copying and further distribution of copyrighted works the institution
may choose to bypass the TEACH exemptions. Fair use may apply for the use
of copyrighted materials in distance education.
Institutions will, over time, decide how they choose to react to TEACH
exemptions and requirements. Technology will develop and course management
software programs like WebCT and Blackboard may provide "copyright protection
mechanisms" as part of their products. Best practices for the implementation
of TEACH will provide models for other institutions to consider. And, as
in the past, fair use will continue to be the key copyright exemption for
REFERENCES AND FURTHER RESOURCES
Crews, K. D. (2002). New copyright law for distance education: The meaning
and importance of the TEACH Act. Washington, D.C.: American Library Association.
Available online: www.ala.org/washoff/teach.html
Gasaway, L. (2001). Balancing copyright concerns: The TEACH of 2001.
Educause Review, 36 (6), 82-83. Available online: http://www.educause.edu/ir/library/pdf/erm01610.pdf
"Report on Copyright and Digital Distance Education." U.S. Copyright
Office. Available online: http://www.copyright.gov/disted/
Technology, Education, and Copyright Harmonization Act of 2002. U.S.
Copyright Office. Available online: http://www.copyright.gov/legislation/pl107-273.html#13301