New Copyright Law for Distance Education:
The Meaning and Importance of the TEACH Act
Duties of Instructors
Thus far, most duties and restrictions surveyed in this examination of the TEACH Act have focused on responsibilities of the institution and its policymakers and technology supervisors. None of the details surveyed so far, however, begins to address any parameters on the substantive content of the distance-education program. Under traditions of academic freedom, most such decisions are left to faculty members who are responsible for their own courses at colleges and universities. Consequently, to the extent that the TEACH Act places restrictions on substantive content and the choice of curricular materials, those decisions are probably best left to the instructional faculty. Faculty members are best positioned to optimize academic freedom and to determine course content. Indeed, the TEACH Act does establish numerous detailed limits on the choice of content for distance education. Again, the issue here is the selection of content from among copyrighted works that an instructor is seeking to use without permission from the copyright owner.
- Works explicitly allowed. Previous law permitted displays of any type of work, but allowed performances of only "nondramatic literary works" and "nondramatic musical works." Many dramatic works were excluded from distance education, as were performances of audiovisual materials and sound recordings. The law was problematic at best. The TEACH Act expands upon existing law in several important ways. The new law now explicitly permits:
Works explicitly excluded. A few categories of works are specifically left outside the range of permitted materials under the TEACH Act. The following materials may not be used:
- Performances of nondramatic literary works;
- Performances of nondramatic musical works;
- Performances of any other work, including dramatic works and audiovisual works, but only in "reasonable and limited portions"; and
- Displays of any work "in an amount comparable to that which is typically displayed in the course of a live classroom session."
- Works that are marketed "primarily for performance or display as part of mediated instructional activities transmitted via digital networks"; and
- Performances or displays given by means of copies "not lawfully made and acquired" under the U.S. Copyright Act, if the educational institution "knew or had reason to believe" that they were not lawfully made and acquired.
The first of these limitations is clearly intended to protect the market for commercially available educational materials. For example, specific materials are available through an online database, or marketed in a format that may be delivered for educational purposes through "digital" systems, the TEACH Act generally steers users to those sources, rather than allowing educators to digitize the upload their own copies.Instructor oversight. The statute mandates the instructor's participation in the planning and conduct of the distance education program and the educational experience as transmitted. An instructor seeking to use materials under the protection of the new statute must adhere to the following requirements:
- The performance or display "is made by, at the direction of, or under the actual supervision of an instructor";
- The materials are transmitted "as an integral part of a class session offered as a regular part of the systematic, mediated instructional activities" of the educational institution; and
- The copyrighted materials are "directly related and of material assistance to the teaching content of the transmission."
Mediated instructional activities. In perhaps the most convoluted language of the bill, the statute directs that performances and displays, involving a "digital transmission," must be in the context of "mediated instructional activities." This language means that the uses of materials in the program must be "an integral part of the class experience, controlled by or under the actual supervision of the instructor and analogous to the type of performance or display that would take place in a live classroom setting." In the same provision, the statute specifies that "mediated instructional activities" do not encompass uses of textbooks and other materials "which are typically purchased or acquired by the students." The point of this language is to prevent an instructor from including, in a digital transmission, copies of materials that are specifically marketed for and meant to be used by students outside of the classroom in the traditional teaching model. For example, the law is attempting to prevent an instructor from scanning and uploading chapters from a textbook in lieu of having the students purchase that material for their own use. The provision is clearly intended to protect the market for materials designed to serve the educational marketplace. Not entirely clear is the treatment of other materials that might ordinarily constitute handouts in class or reserves in the library. However, the general provision allowing displays of materials in a quantity similar to that which would be displayed in the live classroom setting ("mediated instructional activity") would suggest that occasional, brief handouts-perhaps including entire short works-may be permitted in distance education, while reserves and other outside reading may not be proper materials to scan and display under the auspices of the new law. Converting analog materials to digital formats. Troublesome to many copyright owners was the prospect that their analog materials would be converted to digital formats, and hence made susceptible to easy downloading and dissemination. Some copyright owners have held steadfast against permitting digitization in order to control uses of their copyrighted materials. The TEACH Act includes a prohibition against the conversion of materials from analog into digital formats, except under the following circumstances.
- The amount that may be converted is limited to the amount of appropriate works that may be performed or displayed, pursuant to the revised Section 110(2); and
- A digital version of the work is not "available to the institution," or a digital version is available, but it is secured behind technological protection measures that prevent its availability for performing or displaying in the distance-education program consistent with Section 110(2).
These requirements generally mean that educators must take two steps before digitizing an analog work. First, they need to confirm that the exact material converted to digital format is within the scope of materials and "portion" limitations permitted under the new law. Second, educators need to check for digital versions of the work available from alternative sources and assess the implications of access restrictions, if any.
Additional Considerations for Instructors:
- Notice to students. In addition to the general distribution of informational materials, the statute further specifies that the institution must provide "notice to students that materials used in connection with the course may be subject to copyright protection." While the information materials described in the previous section appear to be more substantive resources detailing various aspects of copyright law, the "notice" to students may be a brief statement simply alerting the reader to copyright implications. The notice could be included on distribution materials in the class or perhaps on an opening frame of the distance-education course. Taking advantage of electronic delivery capabilities, the educational materials may include a brief "notice" about copyright, with an active link to more general information resources.
- Enrolled students. The transmission of content must be made "solely for . . . students officially enrolled in the course for which the transmission is made." The next session will examine the technological restrictions on access, but in addition, the law also requires that the transmission be "for" only these specific students. Thus, it should not be broadcast for other purposes, such as promoting the college or university, generally edifying the public, or sharing the materials with colleagues at other institutions. Educators might address this requirement through technological restrictions on access, as mentioned in the following section.
- Technological controls on storage and dissemination. While the transmission of distance education content may be conducted by diverse technological means, an institution deploying "digital transmissions" must apply technical measures to prevent "retention of the work in accessible form by recipients of the transmission . . . for longer than the class session." The statute offers no clarification about the meaning of a "class session," but language throughout the statute suggests that any given transmission would require a finite amount of time, and students would be unable to access it after a designated time. Also, in the case of "digital transmissions," the institution must apply "technological measures" to prevent recipients of the content from engaging in "unauthorized further dissemination of the work in accessible form." Both of these restrictions address concerns from copyright owners that students might receive, store, and share the copyrighted content. Both of these provisions of the statute call upon the institution to implement technological controls on methods for delivery, terms of accessibility, and realistic abilities for students to download or share copyrighted content. These provisions specifically demand application of "technological measures" that would restrict uses of the content "in the ordinary course of their operations." In other words, when the restrictive controls are used in an "ordinary" manner, they will safeguard against unauthorized reproduction and dissemination. This language apparently protects the institution, should someone "hack" the controls and circumvent imperfect technology.
The UT System Crash Course in Copyright (University of Texas)
Using the Four Factor Fair Use Test
The Rules of Thumb do not describe the outer limits of fair use; they describe a "safe harbor" within the bounds of fair use. So, a use that exceeds the suggestions of the Rules of Thumb may still be fair.
Most people think that the fair use test is difficult. Actually, it's not so much difficult as it is uncertain - susceptible to multiple interpretations. Two people can review the same facts about a proposed use and come to different conclusions about its fairness. That's because one must make many judgments in the course of weighing and balancing the facts.
Attorneys read the "judgments of judges" to learn how to make judgments ourselves, but judges see things differently (one from another) too. Because "reasonable minds can disagree" about fair use, perhaps it is unrealistic to try to predict what a judge would think about a proposed use. But that's just what this test is about.
Here's how it works:
With a particular use in mind,
- Read each question and the comments about it
- Answer each question about your use
- See how the balance tips with each answer
- Make a judgment about the final balance: overall does the balance tip in favor of fair use or in favor of getting permission?
The four fair use factors:
- What is the character of the use?
- What is the nature of the work to be used?
- How much of the work will you use?
- What effect would this use have on the market for the original or for permissions if the use were widespread?
Factor 1: What is the character of the use?
- Otherwise "transformative" use
Uses on the left tend to tip the balance in favor of fair use. The use on the right tends to tip the balance in favor of the copyright owner - in favor of seeking permission. The uses in the middle, if they apply, are very beneficial: they add weight to the tipping force of uses on the left; they subtract weight from the tipping force of a use on the right.
Imagine that you could assign a numerical weight to each use. A nonprofit educational use other than the middle uses, for example, making a copy of a journal article for a university class, might weigh 5 in favor of fair use. But a nonprofit educational use that is also criticism, for example, the inclusion by a faculty member of a quote from another's work in a scholarly critique, would weigh even more in favor of fair use: about 6 or 7. That's because the uses in the middle are "core" fair uses; the ones most dearly protected.
Even if they are for-profit, the core fair uses weigh in favor of fair use: that's why they subtract from the weight against fair use of a commercial use. A commercial duplication of an article from a journal might weigh 5 against fair use. But a commercial commentary or quotation would barely tip the scale, if at all.
This is not to suggest that fair use can be precisely quantitatively analyzed. Numbers are just a tool to illustrate how the facts interact and affect each other. Actually, numbers wouldn't make the analysis any easier: copyright owners and users would have just as much trouble agreeing on weights as we have agreeing on any other judgment about fair use.
Factor 2: What is the nature of the work to be used?
- A mixture of fact and imaginative
Again, uses on the left tip the balance in favor of fair use. Uses on the right tip the balance in favor of seeking permission. But here, uses in the middle tend to have little effect on the balance.
Which way is your balance tipping after assessing the first two factors?
Factor 3: How much of the work will you use?
- Small amount
- More than a small amount
This factor has its own peculiarities. The general rule holds true (uses on the left tip the balance in favor of fair use; uses on the right tip the balance in favor of asking for permission), but if the first factor weighed in favor of fair use, you can use more of a work than if it weighed in favor of seeking permission. A nonprofit use of a whole work will weigh somewhat against fair use. A commercial use of a whole work would weigh significantly against fair use.
For example, a nonprofit educational institution may copy an entire article from a journal for students in a class as a fair use; but a commercial copyshop would need permission for the same copying. Similarly, commercial publishers have stringent limitations on the length of quotations, while a student writing a paper for a class assignment could reasonably expect to include lengthier quotes.