Copyright and Fair use

The Technology, Education and Copyright Harmonization (TEACH) Act was signed into law by President George Bush in 2002.  Special digital uses of copyrighted materials, such as online courses and learning management systems (LMS), require special attention.

The Copyright Clearance Center's TEACH Act page provides a basic introduction to this legislation.

The Technology, Education, and Copyright Harmonization Act (TEACH)  amended the Copyright Act of 1976, Sections 110(2) and 112.  TEACH updates  copyright law pertaining to the “transmission” of performances and displays of  copyrighted materials.  The “transmission” refers to a communication by any  device or process whereby images or sounds are received beyond the place from  which they are sent.  Therefore, TEACH is potentially implicated when any  distance learning course is offered via the Internet, Telecourses, Interactive,  Video Conference, or as a blended course which includes an online component. 

Although TEACH has expanded the scope of educator's rights to perform and display works for digital  distance education, there are still considerable inconsistencies between  distance education and face-to-face classrooms.  Different laws and rules must  be applied when using copyrighted works for distance learning than would be used  for face-to-face instruction.  For example, an instructor may show or perform  any work related to the curriculum (including still images, music, and movies),  in a face-to face classroom.  However, the same instructor would have to  condense some of the works for distance students to view.  TEACH states that  only “reasonable and limited portions” of audiovisual works and dramatic musical  works may be used. 

Benefits of the TEACH Act

• Expansion of the range of allowable works in distance education  settings
• Permits performance or display of complete non-dramatic literary  or musical works
• Allows use of reasonable and limited portions of copyrighted  audiovisual and dramatic musical performances such as audio/video clips
• Expands the permissible receiving locations for distance  education beyond classrooms or computer labs
• Allows digitizing portions of analog materials without first  obtaining permission, if those materials are only available in analog format
• Allows storage of copyrighted materials on servers, which permits  students to view materials at their convenience

Requirements of the TEACH Act for the  Institution

• The institution must be an accredited nonprofit educational  institution or government body.
• Must have a copyright policy in place and inform faculty, staff,  and students about the policy.
• Must verify that copyrighted materials are made available only  to students enrolled in the affected course.

Requirements of the TEACH Act for  Instructors

• The performance or display of materials must  be:  under the control or actual supervision of an instructor, an integral part  of the class session and analogous to what takes place in a face-to-face  classroom.
• The performance or display must be directly related and of  material assistance to the teaching content.
• Students must be informed that materials used in connection with  the course may be subject to copyright protection. 
• The instructor must use a lawfully made and acquired copy.
• Use is limited to performances and displays.  TEACH does not  apply to materials that are for students' independent use and retention such as  textbooks, coursepacks, or readings. 
• Analog works can be converted into digital works if no digital  version is already available. 

Technology Requirements

• Transmission must be made solely for and limited to students  officially enrolled in the course.
• Reasonable efforts must be made to prevent students from  distributing the material after viewing it. 
• Technological protections must be implemented to prevent students  from retaining and further distributing the course materials; e.g., video  streaming. 

The instructors must meet all the above requirements to qualify  for the distance education exemption provided by TEACH.  If all the requirements  are not met, then apply the Fair Use exemption.