The TEACH Act Requirements
The TEACH Act amended the Copyright Act teaching exemption found at 17 U.S.C. § 110(2) to permit certain performances or displays of copyrighted works in a distance learning environment. In order for the use of copyrighted materials in distance education to qualify for the exemptions under the TEACH Act, the following criteria must be met:
- The teaching must occur at an accredited, nonprofit educational institution.
- Only lawfully acquired copies may be used.
- Use is limited to performances and displays. The TEACH Act does not apply to materials that are for students' independent use and retention, such as textbooks or readings.
- Use of materials must be within the context of "mediated instructional activities" analogous to the activities of a face-to-face class session.
- The materials to be used should not include those primarily marketed for the purposes of distance education (i.e. an electronic textbook or a multimedia tutorial).
- Only those students enrolled in the class should have access to the material.
- Reasonable efforts must be made to prevent students from distributing the material after viewing it.
- If a digital version of the work is already available, then an analog copy cannot be converted for educational use.
- Students must be informed that the materials they access are protected by copyright.
- The educational institution must have a policy on the use of copyrighted materials and provide informative resources for faculty advising them on their rights.
Text Materials in the Online Classroom
As a general matter, the posting of textual materials for use by an online class is covered by Fair Use, and the four factors of fair use should be analyzed before posting such materials into your class site.
Copyright in the Distance Classroom
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 physical classroom. These rights are in Section 110(1) of the Copyright Act and apply to any work, regardless of the medium. Because this section of the Copyright Act was meant for face-to-face teaching and not for distance education, online educators were at a disadvantage. When enacted in 2002, the TEACH Act (Technology, Education, and Copyright Harmonization) expanded the scope of educators' rights to perform and display works and to make the copies integral to such performances and display for digital distance education. But there is still a considerable gap between what the statute allows for face-to-face teaching and for distance education.
It is also important to note that the TEACH Act does not supersede fair use. The TEACH Act provides support for use of certain materials in an online environment but fair use may still be the best path to the desired outcome. Online instructors should also be mindful of the existence of any licensing agreements that may determine, irrespective of copyright exemptions, how digital materials may be used.