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Home: Faculty: Use of Copyrighted Works at SDSU: TEACH Act

Copyright Amendments Concerning Distance Learning TEACH Act

Background

The Technology, Education, and Copyright Harmonization Act of 2001 (TEACH Act) was signed into law on November 2, 2002, amending Sections 110 and 112 of the U.S. Copyright Act. These changes specifically address the use of copyright protected materials in distance learning, by non-profit accredited educational institutions.

The act updates the earlier versions of the copyright law to include the capabilities of newer technologies, and is an attempt to protect the rights of the copyright holder, while providing teachers with access to materials they would like to use in distance learning. Some feel that the act provides clarification and finally allows for the use of materials that had been previously excluded. Others feel that it unfairly restricts how faculty, without permission of the copyright owner, may use copyrighted works in their distance learning classes.

As with many parts of the Copyright Act, the amendments have phrasing that is confusing and leaves many unanswered questions. The following is an attempt to clarify some key points that are contained within the amendment.

Performance and Display of Materials

The act’s exemption, which allows for the use of materials in distance learning without permission of the copyright owner, is for “… the performance of a non-dramatic literary work or musical or reasonable and limited portion of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session…” [underline added for emphasis]

  • Performance is to recite, render or play; in the case of motion picture, or other audio-visual work, it is to show its images in any sequence.
  • Display is to show a complete photograph, cartoon, etc.; in the case of motion picture, or other audio-visual work, it is to show individual images non-sequentially.

Under this exemption a faculty member is allowed to include (display) works such as a complete photograph, a cartoon from the newspaper, an illustration from a book, within their distance learning materials. However, it only allows for the inclusion (performance) of a portion of most types of videotape or other types of audiovisual works. The act does not define “reasonable and limited portion”, thus leaving this open to interpretation. Permission from the copyright owner would most likely be necessary to stream an entire video program, to include an entire novel, or more photographs than would normally be used within a “live classroom session”.

Must be Instructional and Under Direction of Instructor

The use of the materials must be “… made at the direction of, or under the actual supervision of an instructor…

  • as an integral part of a class session…
  • offered as a regular part of the systematic mediated instructional activities..
  • directly related and of material assistance to the teaching content…”

This section requires that the faculty member be actively involved in the distance learning activities, but it does not restrict students from posting copyrighted materials, that fall within the guidelines of the act, to a site. It also requires that the materials be directly related to the instruction. Background music, artwork, poems or other materials not directly part of the actual instruction (decorations, mood setting, supplemental readings) are not allowed.

Only for Students Enrolled in Class

The “… transmission is made solely for, and to the extent technologically feasible, the reception … is limited to students officially enrolled in the course…”

If a faculty member wishes to use copyright protected materials under this exemption, the portions of the course containing those materials must be available only to “officially enrolled” students. Password protected websites, such as Blackboard, provide the necessary protections, as long as passwords are only provided to those enrolled in the class.

Retention by Students Must be Prevented

An institution (instructor) qualifies for the exemption if it “… In the case of digital transmissions –

  • applies technological measures that reasonably prevent --
    • retention of the work in accessible form by recipients …for longer than a class session
    • unauthorized further dissemination of the work… by such recipients...
  • does not engage in conduct … to interfere with technological measures used by copyright owners to prevent such retention and … dissemination …”

The second portion of this section requires that any measures (i.e., access keys, copy protection techniques) that the copyright owner puts in place to protect a work, must not be disabled by the institution in a way that will allow students to retain the work.

The first portion appears to be the most difficult requirement of the act. If materials are placed on a website (digitally transmitted) they must be protected from being retained on the student’s computer for longer than the length of time they are connected into the web server or working on that one class session. With streaming video there are ways to assure that the segment may not be retained. However, with text and visuals, such as articles, photographs and illustrations, it is much more difficult to protect against copying.

Restrictions on Types of Materials

The materials used in distance learning under this exemption:

  • Must not include “… such works as textbooks, course packs, or other material in any media, … which are typically purchased or acquired by the students in higher education for their independent use and retention…”
  • Must be from an original that is “… lawfully made and acquired…”
  • Must not be “… produced or marketed primarily … as part of mediated instructional activities transmitted via digital networks…”
  • May only be duplicated from an analog original if “… no digital version of the work is available to the institution; or the digital version of the work … is subject to technological protection measures that prevent its use…”

A safe ‘rule-of-thumb’ would be, if the students usually purchase the items for a classroom-based class, they should purchase them for a distance learning class. The last two points are to protect the copyright owner in the case of materials that are developed for digital transmission and meant for sale to the students (e.g. instructional materials on a website that students would normally pay to use), or were available originally in analog format and are now also available in digital format (e.g. the movie Citizen Kane that was available on videotape, but is now available on DVD).

Notice to Students

The act requires that SDSU provide information concerning copyright to the students including “… notice to students that materials used in connection with the course may be subject to copyright protection…”

All Blackboard courses include the statement below. Faculty with non-Blackboard sites should include a similar statement on their site.

“This website may contain copyrighted works that are included with permission of the copyright owner, or under exemptions provided by U.S. Copyright Law (Sections 110, and/or 107). Copying of any of these copyrighted works is prohibited.”

Summary

Hopefully the above six areas have helped to explain most of the key new revisions introduced by the TEACH Act. The information and interpretations above are based off of reviewing: the TEACH Act, the Report 107-687 (House of Representatives, Committee on the Judiciary) concerning the act, and materials written by Kenneth Crews, Professor of Law, at Indiana University School of Law – Indianapolis.

Copyright is confusing and sometimes appears to be contradictory. For example this amendment does not negate Section 107 (Fair Use) of the Copyright Act, which may allow uses beyond those stated in this revision of Sections 110 and 112. Unfortunately, fair use is extremely vague and difficult to interpret. Thus amendments that have specific requirements help to clarify what is acceptable, but they also often place restrictions on what some users would like to do.

Faculty members following the requirements of the TEACH Act will know that they are not violating a copyright owner’s rights. If, however, there is a need to go beyond what is permitted within the act, either a determination should be made that the intended use falls within fair use or permission should be received from the copyright owner.

Copyright Related Resources

The following sources provide additional information on copyright, fair use and the TEACH Act.