ERIC Identifier: ED470984
Publication Date: 2002-12-00
Author: Russell, Carrie
Source: ERIC Clearinghouse on Information and Technology
Syracuse NY.
New Copyright Exemptions for Distance Educators: The Technology,
Education and Copyright Harmonization (TEACH) Act. ERIC Digest.
THIS DIGEST WAS CREATED BY ERIC, THE EDUCATIONAL RESOURCES INFORMATION CENTER. FOR MORE INFORMATION ABOUT ERIC, CONTACT ACCESS ERIC 1-800-LET-ERIC
With the recent passage of a new law eagerly-awaited by educators,
the same type of copyright protected materials that a teacher would
ordinarily use in the physical classroom can now--in general--be
used in the digital classroom. The "Technology, Education and
Copyright Harmonization (TEACH) Act," which President Bush signed
into law on November 2, 2002, amends two sections of the U.S.
copyright law that educators rely on when using copyrighted
materials in the classroom without prior permission from the
copyright holder (Section 110 on exemption for performance and
displays and 112 on exemption for ephemeral recordings). TEACH
expands existing exemptions to allow for the digital transmission of
copyrighted materials, including on Web sites, so they may
be "viewed" by enrolled students. However, in order to take
advantage of the exemptions, educational institutions must meet
specific obligations outlined in the law. This ERIC Digest outlines
both the privileges and the requirements of TEACH.
MEDIATED
INSTRUCTIONAL ACTIVITIES
Teach changes a fundamental aspect of
public performance and display exemptions by recognizing that, in
the digital environment, enrolled students may take courses or
receive course-related materials outside of the physical classroom.
Students may receive materials at home on their desktop, from
another educational institution located elsewhere in the country, or
in the school's computer center. The exemptions, however, only apply
to "mediated instructional activities." Mediated instruction,
according to the Senate Report (S. Rep. No. 31, 107th Cong.,1st
Sess., 2001) refers to "activities that use copyrighted
materials...integral to the class experience, controlled by or under
the actual supervision of the instructor and analogous to the type
of performance and display that would take place in a live
classroom." Only non-profit, accredited educational institutions
can take advantage of these exemptions. For-profit courses would not
apply. Accredited institutions are post-secondary institutions that
are accredited by a regional or national accreditation agency
recognized by the Council on Higher Education or the United States
Department of Education. Elementary and secondary schools must be
recognized by their applicable state certification board or
licensing process in order to take advantage of TEACH.
NEW
EXEMPTIONS
Copyright holders enjoy exclusive rights of
copyright (17 U.S.C. Section 106), that is only they have the
statutory right to exercise a copyright, such as the right to create
derivative works or the right to publish and distribute works. But
the law also carves out numerous exemptions that allow users of
copyrighted materials the privilege of exercising a copyright under
certain conditions. Without these copyright exemptions, copyright
holders would enjoy a complete monopoly over the use of their works,
which would restrain the purpose of the copyright law"to advance the
progress of Science and the Useful Arts" (U.S. Const. art. I Section
8, cl. 7). The TEACH Act allows educators the right to exercise two
exclusive rights of copyright: the right of public performance and
the right of public display. WHAT MATERIALS CAN BE USED?
The
new legislation allows the display and performance of non-dramatic
literary works (charts, journal and periodical articles, maps, some
types of music, etc.), limited portions of dramatic literary
works (those works that have a "story," such as plays, some motion
pictures, operas, etc.) and any work in ways that would typically
occur in the physical, live classroom. Dramatic literary works have
always been a problematic category since feature motion pictures are
included in this category. The motion picture industry has been
hesitant to loosen up restrictions on dramatic literary works for
educational purposes, but the new law does allows that portions of
these works can be used in courses. Since the law leaves open the
possibility that any work may be displayed (whether in part of in
its entirety), educators could show an entire dramatic literary work
in a mediated instructional environment, if that work is necessary
for the course. For example, film history courses may require that
an entire film be viewed. MATERIALS THAT CANNOT BE USED
Works
that are produced for the sole purpose of being used in distance
education (digital courses available for purchase) are not included
in TEACH. These works have a clearly established market and should
be lawfully acquired. In addition, educators cannot use materials in
the digital classroom in order to avoid purchase. Students enrolled
in the class must purchase required reading, such as textbooks,
course packs and consumable workbooks. However, a teacher may choose
to use a small portion from required course materials in the digital
classroom, such as a graph that appears in the purchased textbook.
Furthermore, TEACH reminds educators that they should not use copies
of works that are unlawfully made, such as pirated copies of music
or films downloaded from peer-to-peer file sharing sources. Finally,
a note about course reserves: Under the new law, course
reserves (whether in electronic or print form) are
considered "supplemental course resources" and are not applicable to
the TEACH exemptions. This does not mean that course reserves are
unlawful or cannot be used for teaching. It only means that under
TEACH, reserve materials are not considered "required" or essential
to the mediated instructional activities described in
TEACH. EPHEMERAL COPIES
Teach also allows educators to copy an
analog work to a digital format for use in the classroom without the
prior permission of the copyright holder when a digital version of
the work is not available or when a digital version exists, but
cannot be used because of technological controls that block access.
Only the portion of the work necessary to meet the pedagogical need
should be converted to the digital format. The digitized copy cannot
be shared with other institutions and no further copies can be
made. RETENTION OF COPYRIGHT PROTECTED WORKS FOR THE INSTRUCTIONAL
SESSION
All copyrighted works used for mediated instructional
activities should be retained only for as long as necessary, that is
however long it may take to accomplish the pedagogical goals of the
class session. For some courses, teachers may need to make
copyrighted works available to the students throughout the course.
Others may find it more conducive to their teaching method to have
copyrighted materials available for shorter periods of time. The law
is not specific about how long a class session might be. This lack
of clarity in the law allows educational institutions some latitude
on how they might describe a "session." For college courses, that
session might be the semester, for others a session might be a week
or a day. Needless to say, educational institutions should not take
unreasonable advantage of the ambiguous "class session" term and
should act in the spirit of the law. ISTITUTIONAL
OBLIGATIONS
Educational institutions should not jump head first
into applying TEACH exemptions without considering and addressing
important institutional requirements. These duties can be
categorized in two groups: copyright education and technological
protection of copyrighted works. Educational institutions must
have in place a copyright policy and copyrighted educational
materials for teachers, staff and students. Congress recognized that
many people do not understand copyright law and what activities are
or are not lawful. While the true test of infringement can only be
adjudicated in the courts, institutions can go a long way in
providing and promoting copyright policies and other materials to
their communities. The law does not define what should be included
in institutional policies, but does state that the policies should
be accurate, promote lawful behavior, and provide notice to students
that materials used in class may be protected by copyright.
In the
best of circumstances, copyright policies should be created with a
wide variety of input from all stakeholders so that all concerns and
ideas are heard and considered. Faculty, teachers, and (yes)
students should be included since they are the users of copyrighted
materials in the class. Librarians and media specialists should also
be included because they retain copyrighted works, assist faculty
with course materials and tend to know the most about the copyright
law at the institution. It would be unfortunate if policies and
educational materials were created in a vacuum or drafted by legal
counsel without input. Legal counsel often takes an overly strict
approach to copyright law, which is understandable since its main
purpose is avoiding litigation. But it should be recognized that
educational institutions have been allowed special and specific
allowances in the copyright law since they are so essential to the
progress of science and the useful arts. If your school or college
already has a copyright policy, it would be a good idea to review
the policy and update educational materials to include TEACH
allowances and requirements. Any institution that does not have a
copyright policy and informational materials on copyright cannot
take advantage of the TEACH exemptions.
The second institutional
obligation is a tougher nut to crack and will depend on the approach
taken by and resources available to the educational institution.
TEACH requires that only enrolled students have access to works
protected by copyright. In addition, TEACH requires that the
educational institution employ technological protection measures to
prevent the further copying and distribution of the copyrighted
works used in the digital class. Of course, it is not feasible to
guarantee that works will not be copied or distributed; there is no
known technology that can achieve this. However, institutions should
use all means at their disposal to control access, copying and
distribution. Currently many schools, colleges and universities
use "password protection" to control access to course materials.
Some institutions also use various authentication tools, such as
student "PINs" (personal identification numbers) required for school
enrollment. For example, a student cannot register for a class
unless they have a PIN that ensures they are officially recognized
by the institution and enrolled.
The law does not specify how far
an institution should go to protect works, but certainly as much as
can possibly be done should be pursued. Available resources affect
the choices that institutions make in this regard. As technology
advances and as the market for protecting technology develops, one
can expect that there will be more technology solutions for
institutions to consider. Ultimately, institutions will have to make
a decision if they believe the technological protection mechanisms
available to them are sufficient to reasonably protect copyrighted
works. If the institution does not feel confident with its
technology solution, that institution cannot take advantage of the
TEACH exemptions according to the law.
FAIR USE CONTINUES TO BE AN
OPTION
The TEACH exemptions do not rule out the possibility of
using "fair use" as a rationale for the display and public
performance of copyright protected works in the digital classroom.
This means that if TEACH exemptions do not go far enough in allowing
the use of materials in the class, fair use can be considered and
may justify the use. In addition, if your institution cannot meet
the requirements of TEACH both the development of copyright
policies and informational materials and a reasonable means to
protect access, copying and further distribution of copyrighted
works the institution may choose to bypass the TEACH exemptions.
Fair use may apply for the use of copyrighted materials in distance
education. CONCLUSION
Institutions will, over time, decide how
they choose to react to TEACH exemptions and requirements.
Technology will develop and course management software programs like
WebCT and Blackboard may provide "copyright protection mechanisms"
as part of their products. Best practices for the implementation of
TEACH will provide models for other institutions to consider. And,
as in the past, fair use will continue to be the key copyright
exemption for educational institutions. REFERENCES AND FURTHER
RESOURCES
Crews, K. D. (2002). New copyright law for distance
education: The meaning and importance of the TEACH Act. Washington,
D.C.: American Library Association. Available online:
www.ala.org/washoff/teach.html Gasaway, L. (2001). Balancing
copyright concerns: The TEACH of 2001. Educause Review, 36 (6),
82-83. Available online:
http://www.educause.edu/ir/library/pdf/erm01610.pdf
"Report on
Copyright and Digital Distance Education." U.S. Copyright Office.
Available online: http://www.copyright.gov/disted/
Technology,
Education, and Copyright Harmonization Act of 2002. U.S. Copyright
Office. Available online:
http://www.copyright.gov/legislation/pl107-273.html#13301
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CARRIE RUSSELL is copyright specialist for the American Library
Association's Office for Information Technology
Policy.
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This publication is funded in part
with Federal funds from the U.S. Department of Education under
contract number ED-99-CO-0005. The content of this publication does
not necessarily reflect the views or policies of the U.S. Department
of Education nor does mention of trade names, commercial products,
or organizations imply endorsement by the U.S. government. Visit the
Department of Education's Web site at: http://www.ed.gov/.
Title: New Copyright Exemptions for Distance Educators: The Technology,
Education and Copyright Harmonization (TEACH) Act. ERIC Digest.
Note: For legislative hearing, "Technology, Education and Copyright
Harmonization Act of 2001. Hearing before the Subcommittee on
Courts, the Internet, and Intellectual Property of the Committee on
the Judiciary on S. 487. House of Representatives, One Hundred
Seventh Congress, First Session," see ED 456 838. For full text:
http://commdocs.house.gov/committees/judiciary/hju73473.000/
hju73473_0f.htm.
Document Type: Information Analyses---ERIC Information Analysis Products (IAPs) (071); Information Analyses---ERIC Digests (Selected) in Full Text (073);
Available From: ERIC Clearinghouse on Information & Technology, Syracuse University,
621 Skytop Rd., Suite 160, Syracuse, NY 13244-5290. Tel:
315-443-3640; Tel: 800-464-9107 (Toll Free); Fax: 315-443-5448;
e-mail: [email protected]. For full text: http://ericit.org.
Descriptors: Access to Education, Access to Information, Copyrights, Distance
Education, Educational Resources, Fair Use (Copyrights), Federal
Legislation, Information Technology, Instructional Materials,
Intellectual Property
Identifiers: Digital Data, Digital Technology, ERIC Digests
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