Copyright Law and the
TEACH ACT
Presented by
Kevin M. Lemley
The Basics of Copyright
 Copyright applies to any original work of
authorship.
 Books, pictures, paintings, television shows,
movies, brochures, songs, sculptures, and
software.
 Only need a minimum level of creativity.
The Rights That Make up Copyright
 Copy, Distribute, Derivative Works, Public
Performance, and Public Display.
 The copyright owner has the exclusive use of
these rights.
Idea/Expression Dichotomy
 Copyright only protects the particular
expression, not the idea.
 Double-entry accounting
When the Copyright is Created
 The copyright is created at the moment the
work is fixed in a medium.
 The author does not have to provide
copyright notice [©].
Copyright Term
 It all started with a 14-year term
 Expansions in the 20th century
 Current term
Under Copyright or in Public Domain?
 In the Mood (Glenn Miller Orchestra)
 Sing, Sing, Sing (Benny Goodman)
 Happy Birthday
 King Porter Stomp (Jelly Roll Morton)
 Amazing Grace
The Basics of Copyright Infringement
 Two elements: (1) access and (2) substantial
similarity.
 Secondary liability if we assist others or profit
from their infringement.
 Independent creation is a defense.
“Standard” Copyright Infringement
Case
 Is the work protected by copyright?
 Is the accused work infringing?
 Honda del Sol commercial
Infringement in the University Setting
(1) Professor makes copies of journal articles and
distributes to the entire department.
(2) Uploading pictures onto course websites.
(3) Uploading pictures onto student organization
websites/newsletters.
(4) Posting cartoons on websites.
(5) Course pack materials.
Civil Liability for Infringement
 Civil Penalties:
(1) Actual Damages; or
(2) Defendant's Profits; or
(3) Statutory Damages (up to $150,000 per
work).
Plus the plaintiff's attorney fees.
Criminal Penalties
 Criminal liability accrues only for willful infringement.
It arises under the following:
(1) Infringement for commercial advantage (felony
level at $2,500);
(2) Infringement within a 180 day period which has a
retail value of at least $1,000 (felony level is same);
(3) Distributing a work before it is released for
commercial distribution (automatic felony).
The Basics of Fair Use
 Fair use applies to purposes such as
criticism, comment, news reporting, teaching,
scholarship or research. See 17 U.S.C. §
107.
 This does not mean the use is always fair
use.
The Fair Use Factors
 The Copyright Act requires analysis of 4 factors to evaluate fair
use:
(1) the character of the use, including if it is a commercial nature
or nonprofit;
(2) the nature of the copyrighted work;
(3) the amount of the portion used compared to the copyrighted
work as a whole; and
(4) the effect of the use upon the potential market for or value of
the copyrighted work.
See 17 U.S.C. § 107. All 4 factors must be evaluated, but the
final factor is often the most determinative.
Fair Use?
 Hillary Clinton 1984 ad
 Wedding dance
 Wedding song
Fair Use Pop Quiz
Which of the following is fair use for amount
of a book taken and used in your course
pack?
(a) 30%
(b) 18%
(c) 8%
(d) 5%
Evaluating Fair Use
 You are not guaranteed that a use is fair use.
 The copyright owner can still bring the
lawsuit; fair use is a defense.
 Norms in the education industry frown upon
one educator suing another educator.
Classroom Rights
 Teachers get "additional rights" in the
classroom.
 You can display or perform a copyrighted
work as long as it is related to the curriculum.
See 17 U.S.C. 110(1).
Exception: You cannot show an illegal copy
of an audiovisual work.
Overview of the TEACH Act
 The TEACH Act provides rights for distance learning classes.
Institution Conditions
(1) Policies and provide information about copyright;
(2) Reasonably prevent students from keeping works after class
session and redistributing them; and
(3) Not interfere with technological controls by copyright owners.
Conditions on the Work
(1) Made under supervision of instructor;
(2) Directly related to a regularly-taught class; and
(3) Technologically limited to students in the class.
Works You Can Use Entirely
(1) Performances of a non-dramatic literary work
Includes: reading a short story, poem, or article
Excludes: performing a play or transmitting audiovisual works (e.g.,
movies)
(2) Performances of a non-dramatic musical work
Includes: playing/singing a song
Excludes: opera or transmitting audiovisual works (e.g., music videos)
(3) Still images (pictures)
Works You Can Use Only a Portion
 For some works, you can only use a limited
amount:
Transmit reasonable and limited portions of
other performances
No definition of "reasonable and limited"
Copies You Can Make
 A new provision of the Copyright Act allows you to
make copies of digital works and make digital copies
of analog works. See 17 U.S.C. § 112(f).
Limitations:
(1) The copies are retained only by the school and
used only for authorized activities under Section 110;
and
(2) The digital copy of an analog work has
technological controls.
Works Not Covered by the TEACH
Act
 Some works are off limits under the TEACH act:
(1) Works that are marketed primarily for performance or display
as part of instructional activities transmitted via digital networks.
Note: use may qualify as fair use, just not protected under the
TEACH Act.
Protects the market for educational videos.
(2) Illegal copies
(3) Watch out for hybrid situations
You can copy and transmit a VHS but not a technologicallycontrolled DVD.
No Cases Yet on TEACH Act
 No cases have been published yet on the
TEACH Act.
 Helpful in the sense that educators are not
being sued.
 Unhelpful in the sense we have had no
judicial interpretation of the act.
Getting Permission
 For written works, the Copyright Clearance Center manages
the largest database. The fees are less for academic use than
commercial use.
 For pictures Getty Images has an extensive database of rights-
managed and royalty-free images.
 Music licenses are available through ASCAP and BMI. Typically
these licenses are for university radio stations or performing
groups such as bands. You may prefer iTunes.
 Get permission (in writing) directly from the author. Make sure
the person you contact is the copyright owner.
Selecting Course Materials—
Preliminary Matters
 For any writing, picture, video or music,
assume the work is under copyright.
 See that you are comfortable it falls within the
TEACH Act or is fair use.
 If not, get permission.
Selecting Course Materials—
Substantive Considerations
 Choose materials with high educational value
but low market value. Consider the various
risks of:
(1) Showing a clip of Schindler’s list or a clip
of a low-profit independent film;
(2) Posting 5 pages from the current
bestseller or 5 pages from an obscure
textbook.
Linking Rather Than Broadcasting
 Continuous broadcasting could create
problems.
 Linking is much more advantageous. Provide
your students with the link rather than the
work itself.
 Search Google Video and YouTube to find
helpful clips.
Make Your Own Materials
 Consider preparing your own written
materials.
 You are free to read another's work and then
create your own expression of that idea.
 In fact, this is the policy behind copyright.
Keep the Website Closed
 The website you use to post materials should be
closed, via password protection, to only your students
and certain university personnel.
 Closing the website provides you with protection:
(1) Much more likely to be fair use;
(2) Difficult to discover; and
(3) Limits the "harm" caused to the owner.