Intellectual Property and Copyright Resources

TEACH Act Highlights and Resources
by Janis H. Bruwelheide, Ed.D.*

We have some good news on the copyright front for distance learning. President Bush signed into law the TEACH Act which enacts many of the recommendations from the study conducted by the Copyright Office published in 1999 primarily the repeal of the former 110(2) which applied mostly to closed circuit television environments and did not fit the present distance learning technologies. Under the "old" 110(2) digital transmissions that are commonly needed in distance learning situations were not usually permitted. However, there are many requirements for compliance, which accompany the use of the new benefits, and they are somewhat complex. Educators should be reminded that there are still options to be explored outside of the TEACH act which might apply to situations not covered. These are: fair use, permissions, and creative use of library resources. Provided in this brief overview are a few highlights only so please read the materials below for more information on TEACH Act. A possible good side effect of the TEACH act is that fair use is not dead but is alive and well so let's use it and defend it.

A few highlights:

1. The new, improved 110(2) permits performance and display of almost all types of works. There are some exceptions but the benefits are still substantial. There are still gaps between what we can do in distance learning situations vs. what we can do in a face-to-face teaching situations. For distance learning situations, think "clips and snips" which represent "reasonable and limited portions" for audiovisual works and dramatic, musical works. Read Georgia Harper's material for a more complete explanation and how fair use will be helpful for distance learning needs outside of the TEACH Act. Georgia Harper also covers exclusions from coverage and conditions, which apply. Her checklist is very helpful.
2. The receiving location language has been expanded and no longer limits transmission of content to classrooms devoted to instruction and similar sites. Distance learners may be reached at any site by accredited nonprofit institutions as stated in the language that the benefits apply only to a "government body or an accredited nonprofit educational institution." The "accreditation" for post-secondary education institutions is "as determined by a regional or national accrediting agency recognized by the Council on Higher Education Accreditation or the US Department of Education." As regards elementary and secondary schools status the accreditation "shall be as recognized by the applicable state certification or licensing procedures."
3. Digitization of analog works in order to facilitate digital transmission is permissible for some digital works IF the work is not available already in digital format and as long as it is free from TPM (technological protection measures) prohibiting Section 110 applications.
4. TEACH allows retention of content and student access for a time and allows for the copying and storage needed for technical maintenance for digital transmissions systems.
5. TEACH clarifies that participants in authorized distance learning situations and programs are not liable for infringement for any transitory or temporary reproductions that happen in the automatic technical processes of digital transmission.

Requirements in order to use TEACH Act Provisions: Please see the items by Harper and Crews at the ALA web site for more complete information.

Salient examples are:

1. The institution's accreditation status as presented in item two above must apply in order to use the TEACH Act provisions.
2. There is a requirement that qualifying institutions have copyright policies in place, provide information and education about copyright and provide notice that materials may be protected by copyright.
3. Application of reasonable technological measures that prevent distance learners from retaining copyright materials beyond class applications and prevent unauthorized distribution is required.
4. Performance and display of copyrighted materials has some requirements attached to it including that uses must be a regular part of the class activities and directly related to class content. The instructor is to be the one to make or direct or supervise the performance or display and the use must be technologically limited to only students enrolled in the class.
5. The authority to make digital copies of analog works needed to perform and display works in a digital environment is a new clause. However, the copies can only be kept by the institution and used only for authorized activities described in Section 110. Works to be digitized MUST be free of TPM measures preventing uses in Section 110 and unavailable in digital format. Exclusions include: materials which are specifically developed and marketed for the distance learning market, illegal copies, materials usually purchased by students (i.e. coursepacks, textbooks.)
6. The duties and responsibilities placed upon institutions, IT officials, and instructors are described in the article from the ALA web site.

Summary:

The TEACH Act provides some much needed clarification and expansion of privileges for distance learning. Although many requirements must be met, the Act, when coupled with application of fair use, makes life a bit easier for distance learning providers, faculty, and students.

Resources:
University of Texas Copyright Crash Course: Georgia Harper provides a readable overview and a checklist for using the TEACH Act.

Balancing Copyright Concerns: The TEACH Act 2001 by Laura Gasaway. Lolly provides a concise review of Teach Act provisions.

American Library Association Washington Office: The ALA article, New Copyright Law for Distance Education: The Meaning and Importance of the TEACH Act, written by Kenneth Crews contains a good presentation of benefits and requirements of the TEACH Act as well as roles and duties of instructors, policy makers and institutional IT professionals. While TEACH does not address libraries per se there are implications for the roles of librarians which can help to support TEACH Act benefits through policy assistance, collections, licensing and many other avenues. Libraries may also support distance learning through interpretations of fair use and appropriate use of library reserves and e-reserves. This article contains a discussion of roles for librarians and library services.

U.S. Copyright Office Report on Copyright and Distance Education: Here is the entire report published in 1999.

*Janis H. Bruwelheide, Ed.D. is a Professor of Education and Library Media. She is the project director of Borderless Access to Training and Education at Montana State University. She is also the author of The Copyright Primer: A Handbook for Educators and Librarians (last update 1998).