A good question to ask is this: "Is the TEACH Act right for my use of copyrighted materials in distance education?" And as a corollary, if it isn't right for your distance education program, what else can you do? You have options and there are six choices from which you can mix and match. These are:
- Don't 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.
- Continue to do what you are doing now, viz., obtain licensing for copyrighted materials that require permission to transmit.
- Rely more heavily on the doctrine of Fair Use as codified in §107 of the Copyright Law. More information on fair use can be found under Related Links.
- 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. More information on these types of materials can be found at our main page.
- Rely on The TEACH Act. A much more thorough discussion of the Act follows below.
Use the Conference on Fair Use (CONFU) Multimedia Guidelines. These Guidelines are not the law but may be used either in conjunction with the other five options or as a standalone option.
Prior to the TEACH Act distance educators had a major obstacle in the Copyright Law to comply with - Section 110(2). This section of the Law actually prohibited the transmission of performances of copyrighted materials without first obtaining permission of the copyright holder on both the Internet and in our IHETS TV courses or any other kind of transmission, including 2-way, video streaming, etc. The old §110(2) of the Law made a trichotomy of distinctions that made seeking permission mandatory:
Dramatic works vs. Nondramatic works
Performances of works vs. Displays of works
Sequential materials vs. Nonsequential materials
The types of works or materials on the left required permission to transmit. Those materials on the right required no permission or licensing at all to use in distance education courses. To remedy this negative distance education trichotomy, The T.E.A.C.H. Act was crafted and was made the Law of the Land on November 2, 2002.
What does the TEACH Act do to assist distance education?
Basic Changes in The TEACH Act
This law made five fundamental changes that assist distance education.
1. The categories of works that can be performed now include limited and reasonable portions of works that used to require permission and/or licensing. However, this does not include using clips from works produced primarily for educational purposes. As an example, if you want to use a video from the ASCD, The Association for Supervision and Curriculum Development, which specializes in exclusive productions for educational purposes, you will still need their permission to transmit their material which is produced for educational purposes.
In §110(1) of the Copyright Law there are no limits to and no permissions required for the use of copyrighted materials in the face-to-face classroom. Unfortunately, the very welcome change in §110(2) still does not fully allow all of those face-to-face rights as provided in §110(1). Consequently, the use of audio/visual works and dramatic music works are limited to "reasonable and limited portions." In other words, "reasonable limited portions" means the use of clips of copyrighted audiovisual & dramatic musical works in distance education.
What about those "reasonable and limited portions?" Here's 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 to 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. No more than that, however.
2. Another laudable change in The TEACH Act involves the fact that the restrictive, archaic requirement of a physical classroom is now eliminated. That physical, face-to-face classroom concept of four walls, a ceiling and a floor is now removed from consideration in the use of copyrighted materials. This is also a welcome change and an acknowledgment of the reality of remote students. This important change now allows students to access digital materials in a course whenever and wherever they have access to a laptop or a PC.
3. The storage of copyrighted materials on a server is now allowed which makes available both synchronous and asynchronous use of copyrighted performances and displays [within the limited portions restrictions, of course].
4. Digitized versions of analog works can be made that are not available in a digital format. In addition, digital works with no encryption can be used. Something very surprising about encrypted works is discussed below.
5. Faculty, staff and students involved in distance education are now not liable for copyright infringement because of those temporary, cache copies that are made due to the digital process of making digital transmissions. This was accomplished by adding §112(f) to the ephemeral recording section of the Copyright Law.