In 2002, Congress passed the Technology, Education, and Copyright Harmonization (TEACH) Act. The provisions have been incorporated into Section 110 of the Copyright Law, as article (2) after the discussion of educational exceptions to the rights of copyright holders.
Short version: distance education courses at accredited nonprofit educational institutions should enjoy the same options as live courses at those institutions.
The right to display or perform a work, either in real time or asynchronously, by electronic transmission, is granted to the extent that fair use and the face-to-face teaching exception would allow. The materials must be
- relevant to the course
- available only to students in the course (i.e. through a strong course management system)
- difficult or impossible to download by the students
- available only for the time equivalent to a particular "class session," not for the whole semester.
he original law allowed an instructor to make a clip from analog sources, such as a VHS tape or a book, or to rip a CD. It did not however allow circumvention of encryption, so it was not permitted to make a clip from a DVD with CSS (or RPC) encryption. The petitions to the Register of Copyright, however, have allowed teachers to circumvent DVD encryption in order to make clips to show in class. Presumably this right would extend to distance-education instructors.
There is one big exception to the right to use digital materials: the rights of producers of educational material are protected; one cannot deliver for distance education "a work produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks" without permission (and probably payments).
Whole work vs. part of a work
One of the thorniest questions to arise from TEACH is whether it is legal to stream an entire work–especially a whole film, whether a documentary or a theatrical film–for students to watch in a course management system.
Section 110-2 allows "the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session" (emphasis added).The strict interpretation of this is that only "reasonable and limited portions" of a theatrical (dramatic) film may be presented online, that is, clips or perhaps longer scenes, but never whole works. However, since film studies courses frequently do involve live screenings of a series of theatrical films in a classroon setting, it is possible to interpret the law as allowing digital streaming of the film to be discussed, so that the students have the same opportunity to see the entire work as their on-campus counterparts.
This question has not been resolved, but UCLA defended its practice of streaming entire films despite being warned to cease and desist by the Association for Information Media and Equipment (AIME).
Digitized media as textbook or course pack
Short version: There is a problem in defining an online classroom.
Language labs are in an unusual position because their role for several decades was to provide copies of media to accompany textbooks purchased by students. As more and more publishers ask each student to purchase a key to an online media site, the question of the role of language centers in providing access obviously changes. thus the question of what TEACH allows us to do with textbook "ancillaries" is important.
TEACH differentiates between an online classroom and online textbooks or homework. An exception to the right to use digital media is noted "with respect to a work produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks." Section 110 (11) clarifies 110 (2), specifying that "mediated instructional activities" "does not refer to activities that use, in 1 or more class sessions of a single course, such works as textbooks, course packs, or other material in any media, copies or phonorecords of which are typically purchased or acquired by the students in higher education."
There are several possible distinctions here:
Between materials normally assigned as homework and materials normally presented during class sessions.It’s hard to draw the line between classroom and homework in the digital world. More and more classes use course management systems into which instructors upload (or download) materials they wish to present to students, and some of these materials are under copyright. The very possiblity of making such media available to students outside precious classroom time leads to a rethinking of what can be accomplished during face-to-face teaching. In language classes, in particular, a hybrid course which loads grammar explanation and practice into online time can free up class time for actual conversation.
Between materials students are required to purchase and materials they access in another way (in the classroom, library reserve, language lab). The fact is that even in a traditional classroom there are homework assignments which do not depend on purchased materials. Libraries and other institutions are more and more putting materials which they own online, often at the specific request of instructors, in order for students to be able to access them without physically coming to the library and checking the item out.
Between textbooks or organized digital courses whose primary market is students of the topic they purport to teach, and materials whose primary market is either libraries or individuals seeking entertainment/information on a topic. The law’s intention is to protect the right of publishers and authors to compete for their market share. Copying instructional software or online instructional materials clearly infringes on the market.
Legal opinions seem to favor the use of course management systems to present digitized materials, governed by Fair Use.
- The Rulemaking of 2008-2009 allowed circumvention of DVD encryption in order to extract short clips (fair use) for "Educational uses by college and university professors and by college and university film and media studies students." This is a very broad definition, not confined to classroom teaching, and suggests that the Register of Copyrights sees digitizing clips as an activity that might be used in other educational contexts besides the classroom (compare the wording of the earlier 2006 exception : "circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors" (italics added).
- In the ruling on the Georgia State e-reserves case, the judge referred to the wording of Section 107, "multiple copies for classroom use," although the materials in question were undoubtedly the digital equivalent of course packs, meant to be consulted outside the classroom. She commented that “students do use the downloaded copies in the classroom,” either on laptops or as printouts (p. 41 of the ruling). Thus, even though students "typically purchase" printed course packs, it is legal to provide them (if the excerpts involved meet standards of Fair Use, or permission has been obtained) online without charge to students.