Cybertelecom Federal Internet Law & Policy An Educational Project

IP: Copyright: Teach Act

The Internet is renowned as the death of distance; one key area this comes to fruition is with remote education. The Internet enables students to take advantage of geographically diverse educational resources. The problem, however, is sharing the works of Edgar Allen Poe over the network without the Raven cawing "Never more"!

There are four ways that educators can take advantage of material when engaged in distance education over digital networks:

• Acquire permission;
• Use material as permitted by Fair Use; [CRS Report 2006 p 2] (Note that the Teach Act does not alter Fair Use rights) [CRS Report 2006 p 6 citing S Rep 107-31]
• Use material in the public domain;
• Take advantage of Section 110(2) of the Copyright Act as amended by the TEACH Act which permits the use of some material in distance education without authorization of copyright owner and without royalty payments.

The Technology, Education and Copyright Harmonization Act of 2002 (the TEACH Act) updated Section 110 of the Copyright Act, entitled “Limitations on exclusive rights: Exemption of certain performance and displays.” Section 110 creates "Statutory Exceptions" to the Copyright Act. "A statutory exemption means that Congress has determined that certain copyrighted works may be used for a specific purpose without permission of a copyright holder." [CRS Report 2006 p 2] Sec. 110(2) creates certain exceptions for distance education. 17 U.S.C. § 110(2); 17 U.S.C. § 112.

The revisions created by the Teach Act had been recommended in a Department of Education study pursuant to the DMCA. To take advantage of the Teach Act, eligible institutions must comply with certain conditions (availing yourself of the benefits of the Teach Act is optional, not mandatory).

Eligible institutions: Government offices or accredited non profit educational institutions.

"The Act defines “accreditation.” State certification and licensing procedures accredit institutions of elementary or secondary education. Regional or national agencies, recognized by the Council on Higher Education Accreditation or the United States Department of Education, accredit postsecondary institutions with respect to an institution as a whole, not on course offerings alone." [CRS Report 2006 p 5 ]

Covered Transmissions:

• Performance over the network which is
• Made by or at the direction of an instructor;
• An integral part of a class session;
• Offered as a regular part of the systematic mediated instructional activities (a class experience with an instructor and not, for example, homework material outside of the class);
• Directly related to the class;
• To the extent technically feasible, made only to officially enrolled students or government employees [17 U.S.C. § 110(2)(C)] [S.Rept. 107-31 at 11]; and
• Available for only during the class session (this is limited duration; this is not the uploading of work to an online syllabus for the full semester).
• The material is
• One of the following:
• "performances of nondramatic literary or musical work, excluding operas, music videos, and musicals, in their entirety;
• any other work, if only reasonable and limited portions of the performance are used; and
• displays of any work comparable to the use typical in face-to-face displays."
• Not a work produced or marketed primarily for educational use (in other words, companies in the business of producing educational material have that material protected from free dissemination);
• Not unlawfully made or acquired; and
• Stored on a secure server not ordinarily accessible to individuals outside of the class.
• The transmitting body (aka the school or the government office) must
• Institute a copyright policy (what should be in this policy is not specified; note however a similar policy and notice obligation for online service providers seeking to take advantage of the Digital Millennium Copyright Act. In other words, educational institutions may wish to satisfy both obligations with one policy.);
• Provide copyright informational material to the audience which promotes copyright compliance; and
• Gives notice to the students that material used in the course may be subject to copyright protection.
• For digital transmissions, transmitting entity must
• Apply technological measures that reasonably prevent retention of the material for longer than the class session and prevent further dissemination; and
• Not interfere with technological measures to protect copyrighted material.

Ephemeral Recordings:

An ephemeral recording is a temporary or incidental copy of a work. Schools and government offices are authorized to make ephemeral copies for the purpose of remote education transmission if such copies are retained only by the institution that made them and are used only for Sec. 110 remote education.

An eligible entity may not make a digital copy of analog content, unless, there is no digital version available, or the digital version that is available is subject to technological protection measures.

Law

• Copyright Act
• 17 USC 110 Statutory Exceptions
• 17 USC 112
• Teach Act P.L. 107-273, § 13301 (Nov. 2, 2002).
• Promoting Technology in Education: Turbo-Charging the Buses on the Information Highway; Hearing on S. 487 Before the Senate Comm. on the Judiciary, 107th Cong., 1st Sess. (2001)
• H.R. Rept. 107-687, 107th Cong., 2d Sess., at 11 (2002).
• S.Rept. 107-31, 107th Cong., 1st Sess. 5-6 (2001).
• P. 15: "Fair use is a critical part of the distance education landscape. Not only instructional performances and displays, but also other educational materials or student downloading of course materials, will continue to be subject to the fair use doctrine. Fair use [applies] as well to instructional transmissions not covered by the changes to section 110(2) ... above. Thus for example, the performance of more than a limited portion of a dramatic work in a distance education program might qualify as fair use in appropriate circumstances." citing the REPORT ON COPYRIGHT AND DIGITAL AND DISTANCE EDUCATION, supra note 12, at 161-62 (footnote omitted).
• P. 11 "[an] impos[ition of] a general requirement of network security. Rather, it is intended to require only that the students or employees authorized to be recipients of the transmission should be identified, and the transmission should be technologically limited to such identified authorized recipients through systems such as password access or other similar measures. "

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Legislation

"Legislation introduced in the 109th Congress, S. 2686, the Communications, Consumer's Choice, and Broadband Deployment Act of 2006, includes a provision that would grant the Federal Communications Commission (FCC) the authority to adopt regulations giving television broadcasters the right to use the broadcast flag in their digital transmissions. At the same time, however, the bill directs the FCC to issue regulations that would expressly permit the use of broadcast-flagged digital television transmissions by government bodies and accredited nonprofit educational institutions for distance education purposes under the TEACH Act." [CRS Report 2006]

Govt Activity

• CRS Report, Copyright Exemptions for Distance Education: 17 U.S.C. § 110(2), the Technology, Education, and Copyright Harmonization Act of 2002 July 6, 2006
• Library of Congress, Reproductions of Copyrighted Works by Educators and Librarians, Circular 21

References

• 2 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 8.15[C][2][a] (2006)
• CRAIG JOYCE, ET AL., COPYRIGHT LAW § 906[A][2] (5th ed. 2000).

Papers

• TEACH ACT - AMENDED SECTION 110(2) Side by Side Comparison old and new law
• William McGeveran and William W. Fisher, "The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age" (2006)
• The TEACH Toolkit, NCSU 3/17/03
• Technological Requirements of the TEACH Act, ALA 3/17/03
• The TEACH Act Finally Becomes Law, UT 3/17/03
• Robert Thornburg, "The Impact of Copyright Law on Distance Education Programs: How Fair Use and the CONFU Guidelines May Shape the Future of Academia," 27 S. ILL. U. L. J. 321 (2003).