(Note: the presentation was created using VoiceThread. Use the recording tools on each slide to record comments and questions for the author.)
Signed into law in 2002, the Technology, Education, And Copyright Harmonization Act is the commonplace name for a set of rewrites to §110(2) and §112(f) of Chaper 1 of the U.S. Copyright Act. The TEACH Act itself is therefore not a standalone piece of law; rather, the Act is responsible for creating essentially new versions of existing sections.
This web page presents some introductory information about the TEACH Act, but the best way to understand how it works in the real world is by looking at specific instructional scenarios. Visit the TEACH Act scenarios page for learn more about how the law can and cannot be applied to various instructional situations.
At its core the TEACH Act updates the Copyright Act to recognize the profound changes and enhancements to distance education that have taken place with the rise of personal computing and the Internet and to address copyright in those contexts. As such, one of the results of the TEACH Act is the creation of a rough parallel in §110(2) to the "face-to-face exemption" that is commonly understood to exist in §110(1) and which allows for almost unlimited uses of any copyrighted materials as part of direct instruction in a live classroom.
While not as broad and flexible as the face-to-face exemption, the new language in §110(2) nevertheless does put forth categories of use of copyrighted materials that do not first require permission or a license. Moreover, unlike the Fair Use statute, the definitions and requirements contained in the TEACH Act often allow for fairly obvious interpretation regarding which uses are not infringements under the Act.
The New §110(2): Two Broad Exemptions
In summary, according to the TEACH Act, the following uses of copyrighted material, without prior permission or license and subject to the requirements outlined below, are exemptions and not infringements of copyright:
- the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work
– or –
- the display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session
Notes about terminology and content type:
- Neither "dramatic" or "nondramatic" are defined by the TEACH Act.
- "Nondramatic literary works" are defined elsewhere as things like recitations of poems or unstaged recitations from plays.
- Generally, dramatic works have narrative and use dialog and action
- "Musical work" refers here to audio-only recordings of instrumental music, pop/rock songs, opera arias, ballet scores, etc.
- "Reasonable and limited" is also not defined in the Act. The 1976 Senate report on the Copyright Act summarizes this concept as:
- Amount should only be enough to meet education objectives set forth by the instructor
- Should not exceed what would be performed face-to-face
- Should be less than the entire work
- Performance should not substitute for commercial purchase of the work
- "Any other work" also not defined in the Act, but:
- Audiovisual works fall into the performance exemption
- All films, regardless of topic or genre, and music videos are part of this
- Staged performances such as opera, musical theatre, ballet, drama are part of this category
- Audiovisual works fall into the performance exemption
- The TEACH Act does not distinguish between fiction and fact-based content for determining whether the use is covered.
- The display exemption is understood to cover display of materials such as copyrighted images embedded in a PowerPoint presentation, or the creation of an image gallery created by students related to an assignment.
The New §110(2): Requirements for taking advantage of the exemptions
The new language in §110(2) spells out in fairly detailed fashion the requirements that must be observed for a use of copyrighted material to be covered under the exemptions. Indeed, the potential difficulty in implementing the requirements could become a barrier to instructors taking advantage of the safe harbor provided by the TEACH Act. The exemptions reach into responsibilities that are shared among faculty, information technologists, and administrators. Summarized, they comprise the following:
- Use must come from a legally obtained and owned copy of the work
- To qualify for TEACH Act protection, the use cannot be made from, for example, a burned CD-R or DVD-R or a file downloaded via Bit Torrent.
- Use occurs at an accredited, non-profit education institution
- CSU Stanislaus meets this requirement, while for-profit universities do not.
- Use is part of mediated instructional activities.
- "Mediated" means the use was chosen and led in some fashion by the course instructor or was approved by the instructor for student use as part of instructional activities. "Mediated" is also not limited to synchronous or time-specific activities, but mediated does not also mean "reserves".
- Use is limited to enrolled students in a specific class.
- The use must take place in an instructional setting akin to how a use would be permissible in a face-to-face classroom. It cannot be open to the public.
- Use cannot substitute for textbook materials or items specifically developed for educational use.
- Taking steps to replicate an entire CD anthology using library or personal materials, or building an electronic course pack of readings, do not qualify the use for the exemptions specified by the new §110(2) language.
- Reasonable technological steps must be taken to prevent unauthorized storage or further dissemination of the work.
- Using a Blackboard course site, along with other simple technological steps, will meet the "reasonable" requirement here.
- The institution has put together:
- Publically available copyright policies
- Educational materials (like this web page)
- Notices to students that instuctional materials may be protected by copyright.
How does it apply to teaching online?
The best way to grapple with applying the TEACH Act's exemptions to online teaching is to think about specific instructional scenarios.
Does the TEACH Act replace Fair Use?
No. The TEACH Act and the Fair Use statute (§107) of the Copyright Act are independent. If the TEACH Act does not appear to exempt a particular use, the instructor can always investigate the appropriateness of using the material under Fair Use.
For more information about Fair Use, visit our Fair Use 101 primer.
Does the TEACH Act authorize "electronic reserves"?
The TEACH Act does not cover uses that are not part of directed and mediated instruction or materials that would serve as a substitute for commercial educational products and services. Supplementary materials made available for general student interest are also not part of the exemptions granted by §110(2).
View the instructional scenarios for more information.