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Copyright and Moodle
Copyright, the TEACH Act, and Online Material
The 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 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.
This disparity, coupled with the considerable number of additional
limits and conditions (see Section 110(2)'s expanded rights, below) imposed
by the statute, may lead some educators to conclude that it's more trouble than
it's worth to rely on Section110(2). This statute's complexity provides a new
context within which to think about fair use: compared to the many conditions
and limits contained in Section 110(2), the four factor fair use test seems,
well, simple and elegant. That's a good thing, because even when we rely on and
find 110(2) helpful, fair use will still figure heavily in our exercise of
performance rights because putting anything online requires making a copy of
it. The TEACH Act authorizes us to digitize works for use in digital
distance education, but only to the extent we are authorized to use those works
in Section 110(2), and so long as they are not available digitally in a
format free from technological protection. So, for example, where 110(2)
authorizes the use of movie clips and the available DVDs don't permit ripping
(a prerequisite to creating a digital "clip"), you can digitize those
parts using an analog tape; but you are not authorized by the TEACH Act to
digitize the whole movie. Fair use is almost always going to be the best
source of authority for making copies in any context, but especially in
conjunction with statutes like 110(2) that give us specific authorization that
may not be sufficient in a particular case.
Fair use also remains important because the activities the TEACH Act
authorizes are a small subset of the uses of electronic resources educators may
wish to make. It only covers in class performances and displays, not,
for example, digital delivery of supplemental reading materials. For
those activities, as well as many others, we'll need to continue to rely on
fair use. This means that, in general, where there is an established market for
permissions, there will often be a narrower scope for fair use. In practical
terms, this means that where it's easy to get permission, for example, to put
text materials on reserve, our reliance on fair use should be limited; on the
other hand, where it's near impossible to get permission, for example, for
music and movies where those industries are not yet very responsive to the
needs of distance educators, the scope of fair use expands to permit reasonable
uses of such materials for both local and remote students. So, fair use will
likely be very helpful for using music and movies in the classroom and as
Section 110's role in the balance of interests has always been to permit
educators to share works with their students, to show others' works in class.
In its exclusion of meaningful rights for digital distance educators,
Section110 was failing to carry its weight, so to speak. It had been, in
effect, "written out" of the statute by being permitted to become
outdated and obsolete. Now it has been expanded to permit educators to show
materials the statute did not cover before; however, new Section 110(2)
significantly limits who may display and perform how much of what materials and
under what circumstances. "Ready to use the TEACH Act," below,
summarizes the 22 (!) prerequisites. Nevertheless, we may be optimistic that, together
with fair use, this new statute will achieve Congress' goal of facilitating
the use of digital technologies in distance education.
Section 110(2)'s expanded rights include the following:
Transmitting performances of all of a non-dramatic literary or musical work
literary works as defined in the Act exclude audiovisual works; thus, examples
of permitted performances in this category in which entire works may be
displayed and performed might include a poetry or short story reading.
Non-dramatic musical works would include all music other than opera, music
videos (because they are audiovisual), and musicals.
2. Transmitting reasonable and limited
portions of any other performance
category includes all audiovisual works such as films and videos of all types,
and any dramatic musical works excluded above.
3. Transmitting displays of
any work in amounts comparable to typical face-to-face displays
category would include still images of all kinds.
Exclusions from coverage:
Not everyone, nor every work, is covered. Section 110(2) applies only to
accredited, nonprofit educational institutions. The rights granted do not
extend to the use of works primarily produced or marketed for in-class use
in the digital distance education market; works the instructor knows or has
reason to believe were not lawfully made or acquired; or textbooks,
course-packs and other materials typically purchased by students individually.
This last exclusion results from the definition of "mediated
instructional activities," a key concept within the expanded
Section 110(2) meant to limit it to the kinds of materials an instructor would
actually incorporate into a class-time lecture. In other words, the TEACH
Act covers works an instructor would show or play during class, such as
movie or music clips, images of artworks in an art history class, or a poetry
reading. It does not cover materials an instructor may want students to
study, read, listen to or watch on their own time outside of class.
Instructors will have to rely on other rights they may have to post those
materials, such as the fair use statute.
In addition, the statute specifies a formidable list of circumstances
under which the permitted uses may be made:
1. The performance or display must be:
a. A regular part of
systematic mediated instructional activity;
b. Made by, at the
direction of, or under the supervision of the instructor;
c. Directly related and of material assistance to the
teaching content; and
d. For and technologically limited to students
enrolled in the class.
The institution must:
a. Have policies
and provide information about, and give notice that the materials
used may be protected by, copyright;
b. Apply technological
measures that reasonably prevent recipients from retaining
the works beyond the class session and further distributing them;
c. Not interfere with
taken by copyright owners that prevent retention and distribution.
Authority to make copies:
Finally, a new section was added to the Copyright Act to authorize
educators to make the copies necessary to display and perform works in a
digital environment. New Section 112(f) (ephemeral recordings) works with
Section 110 to permit those authorized to perform and display works under 110 to
copy digital works and digitize analog works in order to make authorized
displays and performances as long as:
Such copies are retained only
by the institution and used only for the activities authorized by Section 110;
For digitizing analog works,
no digital version of the work is available free from technological protections
that would prevent the uses authorized in Section 110.
The following links contains a checklist to help you determine compliance
with the TEACH Act.
The content above,
subsequent to and including the section labeled The TEACH Act, has been
adapted from The Copyright Crash Course, 2001 Georgia K. Harper, under a Creative Commons License.