Academic Technology & Distributed Learning
Fair Use and the TEACH Act
Guiding Principle: "When in doubt, ask permission."
When all published information was in bound books and periodicals, professors followed
fair-use guidelines when spontaneously sharing new material with students. Internet
technologies and the changes they have made in education are not recognized in the fairuse guidelines that are suggested in the Copyright Law itself nor in guidelines developed
since fair use was developed, but there may be hope. Bills introduced in the U.S. Senate
(S 1146, The Digital Copyright Clarification and Technology Act) and the U.S. House
of Representatives (H.R. 3048, The Digital Era Copyright Enhancement Act) seek to
extend the fair use of copyrighted material to distance education. They would expand
fair-use to encompass digital transmission for the purpose of teaching and research.
Both bills state explicitly that their purpose is to "[expand] the fair use of a copyrighted
work to include uses by analog or digital transmission in connection with teaching,
research, and other specified activities . . . [Revise] certain limitations on exclusive rights
to provide that . . . performances, displays, or distributions of copyrighted works by or in
the course of analog or digital transmissions in connection with certain distance education
activities; and copying works in digital format if such copying is incidental to the
operation of a device in the course of the otherwise lawful use of a work, and does not
conflict with the normal exploitation of the work, and does not unreasonably prejudice
the authors interests" are not infringements.
The House bill additionally "provides that when a work is distributed to the public
subject to non-negotiable license terms, such terms shall not be enforceable under the
common law or statutes of any State to the extent that they . . . abrogate or restrict
specified limitations on exclusive rights."
What would this mean for distance education? The same fair-use privileges professors
enjoy under the current Copyright Law may apply to digitized material online, on the
Internet, and over the World Wide Web. Just because use of the personal computer may
create more copies than there are students (the Model Policy recommends avoiding this
in print), copyright holders may not use this to claim copyright infringement has taken
place. Also, copyright owners could not use non-negotiable license terms to limit fair-use
privileges. That is, a copyright owner could not through the license limit what would be
fair use if the material were in print on paper. The finance article the professor read on
the train could be scanned and posted for the virtual finance class to read when the
students log in after work or after the children are in bed.
What Is Fair Use?
Section 107 of the U.S. Copyright Law states that
[T]he fair use of a copyrighted work, . . . by reproduction in copies or phonorecords or by
any other means specified by that section [106, exclusive rights of copyright owners], for
purposes such as teaching (including multiple copies for classroom use), scholarship, or
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research, is not an infringement of copyright. In determining whether the use made of a
work in any particular case is a fair use, the factors to be considered shall include -- the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
 the nature of the copyrighted work;
 the amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
 the effect of the use upon the potential market for or value of the copyrighted
work.
Answer these three questions to decide whether you need permission to use a
copyrighted work.
1. Is the work protected?
Copyright does not protect, this Policy does not apply to, and anyone may freely use:
 Works that lack originality
o logical, comprehensive compilations (like the phone book)
o unoriginal reprints of public domain works
 Works in the public domain
The general rules for determining whether a protected work is in the public
domain can be summarized as follows:
o Any work published on or before December 31, 1922 is now in the public
domain.
o Works published between January 1, 1923 and December 31, 1978,
inclusive, are protected for a term of 95 years from the date of publication,
with the proper notice.
o But, if the work was published between 1923 and December 31, 1963,
when there used to be a (non-automatic) "renewal term," the copyright
owner may not have renewed the work. If he or she did not renew, the
original term of protection (28 years) would now be expired and these
works will be in the public domain.
o After 1978, the way we measure the term of protection changes. It is no
longer related to a date of publication, but rather runs for 70 years from
the date the author dies (called, "life of the author" plus 70 years). Further,
publication is irrelevant. Works are protected whether they are published
or not.
o Finally, those works that were created before December 31, 1978, but
never published, are now protected for the longer of life of the author plus
70 years or until December 31, 2002.
 Freeware (not shareware, but really, expressly, available free of restrictions-ware
-- this may be protected by law, but the author has chosen to make it available
without any restrictions)
 US Government works
 Facts
 Ideas, processes, methods, and systems described in copyrighted works
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2. If the work is protected, do you wish to exercise one of the owner's exclusive
rights?
 Make a copy (reproduce)
 Use a work as the basis for a new work (create a derivative work)
 Electronically distribute or publish copies (distribute a work)
 Publicly perform music, prose, poetry, a drama, or play a video or audio tape or a
CD-ROM, etc. (publicly perform a work)
 Publicly display an image on a computer screen or otherwise (publicly display a
work)
3. Is your use exempt or excused from liability for infringement?
If an exemption does not excuse infringement and eliminate the need to ask permission or
pay fees to exercise the owner's rights, you need permission.
 Fair use
 Library's special rights
 Educational performances and displays
Teach Act
Copyright law provides educators with a separate set of rights in addition to fair use,
to display (show) and perform (show or play) others' works in the classroom. These
rights are in Section 110(1) of the Copyright Act and apply to any work, regardless of
the medium.
Until recently, however, when the classroom was remote, the law's generous terms for
face-to-face teaching in Section 110(1) shrank dramatically in Section 110(2) -- some
would say to the vanishing point!
These severe limitations on what could be performed in distance education received lots
of attention. In 1998, Congress directed the Copyright Office to prepare a report
recommending what should be done to facilitate the use of digital technologies in
distance education.
The Copyright Office prepared its report and recommended significant changes. In March
2001, a bill was introduced closely tracking the Copyright Office's recommendations. It
took almost 2 years, but the TEACH Act finally became law in late 2002.
The TEACH Act expands the scope of educators' rights to perform and display works and
to make the copies integral to such performances and displays for digital distance
education, making the rights closer to those we have in face-to-face teaching. But there is
still a considerable gap between what the statute authorizes for face-to-face teaching and
for distance education. For example, as indicated above, an educator may show or
perform any work related to the curriculum, regardless of the medium, face-to-face
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in the classroom - still images, music of every kind, even movies. There are no limits
and no permission required. Under 110(2), however, even as revised and expanded, the
same educator would have to pare down some of those materials to show them to
distant students. The audiovisual works and dramatic musical works may only be
shown as clips -- "reasonable and limited portions," the Act says.
What are the TEACH Act requirements for use of copyrighted materials in distance
education?
Use the following handy checklist to make sure all requirements have been met, and to
see whether you are ready to use the TEACH Act.
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My institution is a nonprofit accredited educational institution or a governmental
agency
It has a policy on the use of copyrighted materials
It provides accurate information to faculty, students and staff about copyright
Its systems will not interfere with technological controls within the materials I
want to use
The materials I want to use are specifically for students in my class
Only those students will have access to the materials
The materials will be provided at my direction during the relevant lesson
The materials are directly related and of material assistance to my teaching
content
My class is part of the regular offerings of my institution
I will include a notice that the materials are protected by copyright
I will use technology that reasonably limits the students' ability to retain or further
distribute the materials
I will make the materials available to the students only for a period of time that is
relevant to the context of a class session
I will store the materials on a secure server and transmit them only as permitted
by this law
I will not make any copies other than the one I need to make the transmission
The materials are of the proper type and amount the law authorizes:
o Entire performances of nondramatic literary and musical works
o Reasonable and limited parts of a dramatic literary, musical, or
audiovisual works
o Displays of other works, such as images, in amounts similar to typical
displays in face-to-face teaching
The materials are not among those the law specifically excludes from its
coverage:
o Materials specifically marketed for classroom use for digital distance
education
o Copies I know or should know are illegal
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o Textbooks, coursepacks, electronic reserves and similar materials typically
purchased individually by the students for independent review outside the
classroom or class session
If I am using an analog original, I checked before digitizing it to be sure:
o I copied only the amount that I am authorized to transmit
o There is no digital copy of the work available except with technological
protections that prevent my using it for the class in the way the statute
authorizes
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