Section 110(2) and Section 112 in Title 17 of the United States Code was expanded by Congress in 2002 by the Technology, Education and Copyright Harmonization Act. The TEACH Act addresses the needs presented by distance education and the performance or display of works in an online environment.
The term “distance education” is applied loosely; any activities conducted via online course management systems (such as Blackboard), whether they are synchronous or asynchronous, are covered under the TEACH Act.
The TEACH Act contains very specific guidelines regarding what requirements must be met and what materials are eligible to be used. If a faculty member cannot meet these requirements, the TEACH Act should not be used as a justification for the use of copyrighted materials without permission. In that case the faculty member may, as appropriate, decide that fair use applies to his/her use of the materials – or they may seek permission from the copyright holder.
TEACH Requirements for Faculty:
- Performance/display of work must be part of mediated instructional activities, and be integral to the goals of the course
- The portion of the work used must be analogous to that which would be used in a live classroom session
- Access to the work must be limited to students enrolled in the course
- Students must be instructed that further copying/distribution of the work violates copyright law
- The work(s) must not be available to students, or retained by students, beyond the class session
- The copy of the work used must be legally made and obtained
- If converting an analog work to a digital copy, there must be (a) no digital copy available for purchase or (b) no digital copy available for purchase without technological controls that will not permit uploading/use in the online classroom environment
TEACH allows:
- Performances of nondramatic literary works (up to and including the entire work)
- Performances of nondramatic musical works (up to and including the entire work)
- Performances of any other work, including dramatic works and audiovisual works (e.g. film clips), but only in “reasonable and limited portions”
- Displays of any work “consistent with displays typically made in a live classroom setting (e.g., short poems or essays, or images of pictorial, graphic, or sculptural works, etc.)”
TEACH does not allow:
- Use of works that have been developed and marketed specifically for distance education, course management systems, or online educational uses
- Use of works if the copy has not been legally made or obtained
- Any use of a work that would substitute for students purchasing the work for their own study/review
- Posting full-text materials on course pages
TEACH Act benefits:
- Allows faculty to use longer portions of material than previously allowed under Section 110(2)
- Definition of “class session” is flexible – students may access materials at different times
- There is no limit on the number of terms a work may be used without seeking permission; the same work(s) may be used repeatedly for the same course(s), assuming all other requirements have been met
- May be used in conjunction with fair use; some materials on Moodle may fall under TEACH, some may fall under fair use, some may need permission