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Welcome back to our journey through copyright law.
Today we are going to be talking about the TEACH Act.
Which authorizes certain kinds of online performances and
displays for distance education.
The TEACH Act stands for the Technology, Education and Copyright Harmonization Act.
It was adopted by Congress in November of 2002.
It amended the previous section 110.2 in the copyright law, which was
already designed for performances and displays in distance education, but
really, was confined to the technology of closed-circuit television.
So, Congress updated the law to allow for online, digital, distance education.
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You have a copy of the TEACH Act text in the handouts for this segment.
And, as I said, it's relatively complex and long.
If you want to print that out and look at it, that's fine.
But we're going to go through it section by section,
and talk about how you make the TEACH Act work.
The fundamental concept in section 110.2,
is that it's not an infringement of copyright to make a public performance or
display online to a closed group of registered students.
If you follow all of the provisions in section 110.2 in our framework for
analyzing a copyright problem, this exception is one of those except,
specific exceptions and falls under section two.
So, we're asking,
is there a specific exception that allows us to do what we want to do.
In this case, sometimes that will be the TEACH Act.
Right, Lisa?
>> Sometimes it will be the TEACH Act.
But there is a lot, as you said, Kevin, to make the TEACH Act apply and
to really follow the TEACH Act.
So, let's walk through the TEACH Act.
The TEACH Act excludes the performance and display of works produced or
marketed primarily for performance and display as part of mediated
instructional activities transmitted via, di, digital networks.
So essentially it's telling us that analog in most digital works are okay.
But not off the shelf online courses that were intended
specifically to meet the online course marketplace.
It also excludes a performance or display that is given by means of a copy
that is not lawfully made and acquired if the transmitting institution knew or
had reason to believe it was not lawfully made and acquired.
So this is very similar to the classroom performances in section
110.1 that we covered previously.
Also like classroom performances,
the TEACH Act permits the performance of nondramatic literary and musical works.
Performance of any other work is also permitted but only in reasonable and
limited portions comparable to what is
typically displayed in a live classroom setting.
So there are questions that arise.
Does this intend to mean no entire films?
It does not include outside readings, like course reserves or course packs.
Performance or display must be made by at the direction of, or
under the actual supervision of an instructor, and performance or
display is directly related to, and of material assistance,
to the teaching content of the transmission.
So, this specifically says no supplemental materials such as
things that would be in reserve readings are included in the TEACH Act.
Transmission is made solely for, and to the extent, technologically feasible,
the reception is limited to students officially enrolled in the course.
So this gets back to what Kevin was talking about previously,
where the teach act is really very limited in its scope and
it is really intended only for that instruction that is happening for
students officially enrolled in the course.
But we're not done, are we Kevin?
>> No, we're not.
You've covered the portions of the provisions of the tjack
that are requirements that have to be met for a specific class.
But there are additional provisions which the institution must comply with.
The transmitting body or institution must have policies regarding copyright.
They must provide informational materials to faculty, students, and relevant staff
members that accurately describe, and promote compliance with copyright law.
This can be done in a variety of ways.
Sometimes those materials are online and
they're part of the system in which the students are getting the course material.
Sometimes they're provided separately, but
institutions have to take steps to comply with this provision.
Also, there must be notice to the students that materials used in connection
with the course may be subject to copyright protection.
This is something that almost always has to be inside the course, itself.
And this is similar to the copyright notice that is required for copies that
are made through inter-library loan that librarians are very familiar with.
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Also, for digital transmissions, the institution must apply technological
measures that reasonably prevent the retention of the work in accessible form
by students for longer than the class session and
prevent unauthorized further distribution of the work by students to others.
These are the kinds of provisions that were difficult to comply with in the past
because they asked us to do technological things that were very difficult to do.
Over the course of time since 2002,
it's become easier to comply with some of these provisions.
For example, by locking down a PDF file, or
by streaming a digital file rather than making it accessible for download.
It's important to remember that what the law requires are reasonable
technological steps.
They don't have to be perfect.
So streaming is a reasonable technological step to prevent retention and
further distribution, even though we know it's possible to capture a digital stream.
The steps do not need to be perfect.
Also, the institution must make sure that it does not engage in conduct.
That reasonably interferes with technological measures
that are intended to prevent distribution or retention of the work.
In other words, you're not allowed to break through digital locks.
As I've said, this requirement is reasonable but not perfect measures.
So streaming is an option.
Disabling right-click, thumbnails, and
low-resolution images may all be reasonable technological
measures that prevent retention and further distribution.
Now, one thing I think we've already mentioned but we ought to elaborate on
Lisa, is that the TEACH Act does not apply to online electronic reserves.
>> That's right, Kevin.
And that is a question that comes up pretty frequently.
Particularly courses that may be hybrid courses where instructors are really
trying to kind of find there way in, in this area and as you said complying
with the teach act has become easier but it is still a lot to comply with.
So for reserves, because reserves were never intended to be read or
preformed in the classroom.
They don't fall under the, the TEACH Act.
It's not comparable to what is typically displayed in the classroom section
that would have been section 110.1 for classroom performances, so
it also doesn't fall under the TEACH Act, either.
Now it doesn't mean that you can't use electronic reserves, but
it means that electronic reserves are really falling under fair use and
we're going to be talking a lot that, about fair use a lot as you know.
>> So let's review about the takeaways for today's talk about the TEACH Act.
Remember that when we're applying the framework for
copyright analysis, this is part of question 2.
We're asking is there a specific exception in the copyright law
that authorizes what we want to do?
You need to consider whether or not the online instruction and
the use of the copyrighting materials as part of that instruction and your
institution are all in compliance with the different portions of the TEACH Act.
If they are, this exception applies to your use.
If it doesn't.
If, for some reason,
you're not able to comply with all of the provisions of the TEACH Act.
Then you just need to move further on in your analysis.
As you said about electronic reserves, Lisa.
We may move to the fair use part of that analysis.
Kevin Smith, M.L.S., J.D.Former Director, Copyright and Scholarly Communication
Lisa A. Macklin, J.D.,M.L.S.Director, Scholarly Communications Office
Anne Gilliland, JD, MLSScholarly Communications Officer
