Complying with the Teach Act: New challenges and more obligations
Complying with the Teach Act: New challenges and more obligations
Fritz Dolak
Background
The Copyright Act of the United States, Title 17 of the US Code, guarantees a number of rights to the owners of copyrights. These rights are defined in Section 106 of the Copyright Act as exclusive rights. Fortunately, these rights are not total rights. If these rights were in fact total, educators would have to go to copyright owners and beg and/or pay them for the use of their copyrighted materials in classrooms.
Fortunately for educators, the Copyright Act provides exemptions for instructional use of copyrighted materials. The Copyright Act in effect states,"Yes, copyright owners, you have these rights but others can use your copyrighted materials for socially beneficial and/or educational uses."These "yes, but" sections of the law begin with §107, Fair Use, and end with §122, Secondary Transmissions Carried by Satellite Carriers in Local Markets. Included, for example, in the "yes, but" sections are the library exemptions of §108, the so-called first sale doctrine of §109 as well as various passim religious and government exemptions.
Of most concern for educators of the "yes, but" sections is §110 of the Copyright Act. Before the TEACH Act, Section 110 was rather bipolar in nature. The old §110 of the law was similar to a Jekyll and Hyde scenario. Section 110(1) was the "yes, but good" Dr Jekyll and §110(2) was the "yes, but evil and totally senseless" Mr Hyde.
The beneficial Dr Jekyll, §110(1), still does incorporate generous exemptions for face-to-face teaching and is usually referred to as the "classroom exemption." The exemptions for the classroom in §110(1) did and still do include performances and displays of copyrighted materials without the permission of the copyright holder as long as four fundamental, educational conditions are met. The display or performance of copyrighted materials:
Must occur in a non-profit educational institution.
Must be in a place where teachers and students are in the same place.
Must occur in a classroom or similar place devoted to instruction.
Must be a lawful copy if the copyrighted work is an audio-visual work.
Mr Hyde, §110(2), on the other hand actually restricted types of works that could be performed or displayed in a unique type of classroom, i.e. the distance education classroom. Distance educators had major obstacles for the use of copyrighted materials guaranteed by the Copyright Law in Section 110(2). In essence, §110(2) prohibited the transmission of performances of important kinds of modern copyrighted materials without first obtaining permission of the copyright holder in any kind of transmission including two-way, Internet video streaming, satellite, etc. The old §110(2) of the Law made a trichotomy of distinctions that made seeking permission mandatory (see Table I).
The TEACH Act was crafted to remedy this negative distance education trichotomy for US distance educators.
A more thorough discussion of the now obsolete §110(2) and the Dos and Don'ts that derived from it can be found in Library Hi Tech News, "Surviving copyright in distance education: a selective list of copyright dos and don'ts"(Dolak, 2001).
To the rescue: the TEACH Act
The TEACH Act is an acronym for the Technology, Education And Copyright Harmonization Act of 2001. President George Bush signed it into US law on November 2, 2002. What does the TEACH Act do to support distance education?
The new law made five fundamental changes that assist distance education:
- 1.
The categories of works that can be performed now include limited portions of works that formerly required permission and/or licensing, such as dramatic literary and dramatic musical works. But this does not include using clips from works produced primarily for educational purposes. For example, and barring a thorough fair use analysis, if you want to use a video from the Association for Supervision and Curriculum Development (ASCD), which specializes in exclusive productions for educational purposes, you are still required to obtain their permission to transmit their specialized, educational videos.
- 2.
Unfortunately, this change in §110(2) still does not fully allow all of the face-to-face rights of §110(1), where there are only the four fundamental, educational conditions mentioned above required for the use of copyrighted materials in the face-to-face classroom. Again, please note that the use of audio/visual works and dramatic music works is limited by the TEACH Act to "reasonable and limited portions", in other words, "limited portions" means clips of copyrighted AV and dramatical music works.
- 3.
What about those "reasonable and limited portions?" Here is what the TEACH Act means by "reasonable and limited portions." The law now allows the display of any work (within the context of the TEACH Act) in "an amount comparable with that typically displayed in the course of a live classroom setting." In other words, whatever amount of a copyrighted work you would use in a face-to-face setting you can now legitimately use in a transmission. This parallel of face-to-face clips vis-à-visdistance education classes is an important and highly useful change in the law. But with usefulness come more tasks and responsibilities which are discussed more fully below.
- 4.
The concept of a physical classroom is now, finally, eliminated. The mindset of a physical, face-to-face classroom has been removed from consideration for the use of copyrighted materials. This overdue change now allows students to access digital materials in a course whenever and wherever they have access to a laptop or a PC.
- 5.
The storage of copyrighted materials on a server is now allowed, which now makes available both synchronous and asynchronous uses of copyrighted performances and displays (within the "reasonable and limited portions"restrictions, of course).
- 6.
Digitized versions of works can now be made where "no digital version of the work [is] available" in a digital format. In addition, digital works lacking encryption schemes can be used. Something very surprising about encrypted works is discussed below.
- 7.
Faculty, staff and students involved in distance education are now not liable for copyright infringement because of those temporary, cached copies that are made due to the digital process of making digital transmissions. This was accomplished by adding §112(f) to the Ephemeral Recordings section of the Copyright Law.
But TEACH also adds a new concept and a plethora of new responsibilities.
Mediated instructional activities
A new, major concept in the TEACH Act is this: mediated instructional activities (MIA). MIA means a couple of things. First of all, it means that an instructor should be present in the accredited distance education environment. Second, as discussed above, MIA limits the types of copyrighted materials used in distance education to the same kinds of materials a face-to-face lecturer would use in a face-to-face class. For example, if you use a four-minute clip from Casablanca in your face-to-face history classroom, you can now use that same clip for your distance education course. Of course, you can use less but you cannot use more and comply with the MIA requirement of the TEACH Act.
To reiterate, whatever an instructor would display or perform during a face-to-face course can now be used legitimately and legally in a distance education course. Besides the "reasonable and limited portions" and the necessity of owning the required legitimate copy of the work, there are four,additional, basic requirements:
- 1.
The performance or display must be related to the teaching content.
- 2.
The performance or display must be technologically limited to enrolled students.
- 3.
The audio/visual transmission must be encrypted and/or password-protected.
- 4.
Copies cannot be retained past the class session. And just what is a class session? The new Law does not provide any assistance. Therefore, just what a"class session" is needs a definition from someone, probably the same person who is making decisions on a Fair Use analysis. This might be the faculty member, or a department chair, or someone else who has the authority to make decisions for the college or university. The meaning of "class session",then, is problematic and quite possibly open to varying perspectives.
In essence then, the TEACH Act:
Only covers in-class performances.
Only covers in-class displays.
For any other distance education activity, for example, supplementary materials such as articles or graphics, Fair Use will probably need to be relied on. Failing Fair Use, permission and/or licensing will need to be obtained for transmitting the copyrighted material(s).
One other interesting item of note in the TEACH Act is that the Act actually allows bypassing any encryption in digital works for limited portion access! If you know about the Digital Millennium Copyright Act (DMCA), then you know that encryption breaking is a potentially criminal violation of the DMCA. Education now has a law that contradicts the DMCA in that it allows distance education instructors to bypass encryption for digital distance education! Remarkable!
Digitization dos and don'ts of the TEACH Act
Some helpful digitization information from the TEACH Act follows in the form of a table of Dos and Don'ts (see Table II).
The TEACH Act troika, three-step or hat trick
The TEACH Act has numerous sets of requirements for three different levels of involvement. Not only is the instructor of the distance education class involved, but the TEACH Act now requires administrative and technological involvement. These requirements need to be satisfied in order to qualify for the distance education exemptions provided for in the TEACH Act. Some of these requirements might very well already be in place but others may have to be implemented. And please be advised of this: no one right now knows just what amount is enough to qualify for the TEACH Act or if all of these requirements are to be met and in place in order to qualify for the exemptions:
- 1.
Administrative or institutional involvement. This has 11 requirements. These requirements are presented in the form of a check-list from the point of view of the institution:
- 2.
We hereby affirm that we are an accredited educational institution.
We have policies regarding copyright in place.
We have copyright informational materials available to the academic community.
We have copyright description materials available to the academic community.
We have copyright compliance materials available to the academic community.
We have copyright notices to the students re: copyrighted materials in the distance education course.
We promote an environment of compliance with the Copyright Law.
We promote an environment of responsibilities under the Copyright Law.
We promote an environment to decrease unintentional and uninformed acts of infringement.
We have verified that the students are officially enrolled in the distance education course.
We hereby affirm that the mediated instructional materials being used are legally purchased, copyrighted protected materials.
- 3.
Technological involvement. This has nine requirements. These requirements are presented in the form of a check-list from the point of view of those involved with technology:
- 4.
We are preventing retention of the copyrighted work(s) past the class session.
We are preventing unauthorized further dissemination of the work(s).
We ensure that encryption or other technological measures to prevent retention are not being circumvented.
We ensure that only anticipated, authorized enrolled recipients have access to the class session and mediated instructional materials.
We ensure that these students are verified for transmission reception through password access or other similar measures.
We ensure that any digital versions of any mediated instructional materials are subject to technological protection.
We ensure that analog materials converted to digital are not available in that digital format.
We ensure that analog materials converted to digital entailing portions are authorized to be performed or displayed under section 110(2) of the Copyright Law.
We ensure that analog materials converted to digital are in compliance with section 112(f)(2) of the Copyright Law.
- 5.
Instructor involvement. This has the most requirements: 21. In all likelihood, most of these are already in place or too obvious not to be in place. Again, these requirements are presented in the form of a check-list from the point of view of the instructor:
- 6.
As instructor, I affirm that the performance of copyrighted material(s) is an integral part of my class session.
As instructor, I affirm that the display of copyrighted material(s) is an integral part of my class session.
As instructor, I affirm that the performance of copyrighted material(s) is directly related and of material assistance to the teaching content of the transmission.
As instructor, I affirm that the display of copyrighted material(s) is directly related and of material assistance to the teaching content of the transmission.
As instructor, I affirm that the mediated instructional activities materials being performed would be an integral part of my face-to-face classroom.
As instructor, I affirm that the mediated instructional activities materials being performed are analogous to my face-to-face classroom use.
As instructor, I affirm that the mediated instructional activities materials being performed are under my control.
As instructor, I affirm that the mediated instructional activities materials being performed are under my actual supervision.
As instructor, I affirm that the mediated instructional activities materials being displayed would be an integral part of my face-to-face classroom.
As instructor, I affirm that the mediated instructional activities materials being displayed are analogous to my face-to-face classroom use.
As instructor, I affirm that the mediated instructional activities materials being displayed are under my control.
As instructor, I affirm that the mediated instructional activities materials being displayed are under my actual supervision.
As instructor, I affirm that any displays and performances of mediated instructional activities materials are not ancillary materials.
As instructor, I affirm that any displays and performances of mediated instructional activities materials are not used for entertainment of the students.
As instructor, I affirm that any displays and performances of mediated instructional activities materials are not used as unrelated background material.
As instructor, I affirm that the mediated instructional activities materials will not displace a textbook.
As instructor, I affirm that the mediated instructional activities materials will not displace a course pack.
As instructor, I affirm that the mediated instructional activities materials will not displace e-reserves.
As instructor, I affirm that the mediated instructional activities materials will not displace digital library resources.
As instructor, I affirm that the mediated instructional activities materials will not displace other material in any media.
As instructor, I affirm that the mediated instructional activities materials will not displace copies of phonorecords specially sold to students for independent use and retention.
In all, the troika mandates a total of 41 requirements in order to comply with the TEACH Act. And to iterate, no one knows just what amount is enough to qualify for the TEACH Act or if all of these requirements are to be met and put in place in order to qualify. As a matter of statutory language, all requirements must be met to comply with the statute to receive the benefits of the §110(2) exemption to avoid infringement. The technical requirements are problematic in that technologically savvy students might, for example, be able to circumvent encryption schemes and keep copies past the class session. Can the school and instructor be responsible for this type of infringement?
Is the TEACH Act right for you and your distance education needs?
The TEACH Act greatly improves the situation for distance education in the USA, but does, as above, pose new obligations and challenges.
A good question to ask is this: Is the TEACH Act right for your use of copyrighted materials in distance education?" And as a corollary, if it is not right for your distance education program, what else can you do? US distance educators do have options and there are six choices from which you can mix and match. These are:
- 1.
Do not use any copyrighted materials at all. This really is not a viable option but some content-providers, if left to their own devices, would prefer this option.
- 2.
Continue to do what you are doing now, namely, obtain licensing for copyrighted materials that require permission to transmit. But sometimes licensing fees can be exorbitantly high with the result being that the cost for licensing cannot be met and the distance education students suffer.
- 3.
Rely more heavily on the doctrine of Fair Use, as codified in §107 of the Copyright Law. A thorough and proper Fair Use analysis will have to be made in order to qualify for the Fair Use exemption.
- 4.
Use free materials. These would include materials from the Internet that are legally royalty-free, public domain, or other works that might have been expressly created for free distribution.
- 5.
Rely totally on the TEACH Act.
- 6.
Use the Conference on Fair Use Multimedia Guidelines (CONFU). These Guidelines are not the law but may be used either in conjunction with the other four, viable options or as a standalone option. The CONFU Multimedia Guidelines do allow the use of strict portions of copyrighted materials for multimedia projects. The projects, in turn, can be used for remote, real time instruction on a secure network. Furthermore, the copyrighted material portions in the project are free to use for two years. More information on these Guidelines can be found here: www.uspto.gov/web/offices/dcom/olia/confu/confurep.htm
What then, is the answer to the question, "Is the TEACH Act right for you and your distance education course?" Obviously, it depends. As many as 41 requirements need to be met in order to take advantage of the exemptions that the TEACH Act offers distance educators. Most copyright lawyers are of the opinion that compliance with all 41 requirements must be met. Administrative and technological requirements may need to be addressed and initiated. Some technological requirements may be difficult to achieve, especially preventing unauthorized dissemination and retention. As listed above, there are other legitimate options besides having to comply with all 41 requirements of the TEACH Act.
If the TEACH Act requirements can be met at your institution, the best solution for distance educators is to make judicious use of all six of the viable options and exemptions listed above.
ReferencesDolak, F. (2001),"Surviving copyright in distance education: a selective list of copyright dos and don'ts", Library Hi Tech News, Vol. 18 No. 6.
Dr Fritz Dolak (fdolak@bsu.edu) is the Copyright & Electronic Resources Librarian at Ball State University in Muncie, Indiana, USA and will follow up this article with one more focused on library technology applications for TEACH. His Web sites may be useful to consult at: Ball State Copyright Home Page: www.bsu.edu/library/thelibraries/units/copyright/ and for the University Libraries' Copyright Forum: www.bsu.edu/libraries/collections/copyright/copyrightforum.html
