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Copyright law provides educators with a separate set of rights, in addition to fair use, to display and perform others' works in the classroom. These rights are in Section 110(1) of the Copyright Act and apply to any work, regardless of the medium. When the classroom was remote, the law's generous allowances for face-to-face teaching became severely limited. These severe limitations on what could be performed in distance education received lots of attention. In 1998, Congress directed the Copyright Office to prepare a report recommending what should be done to facilitate the use of digital technologies in distance education. The Copyright Office prepared its report and recommended significant changes. In March 2001, a bill was introduced closely tracking the Copyright Office's recommendations and in late 2002 the Technology, Education, and Copyright Harmonization (TEACH) Act became law.
The TEACH Act expands the scope of educators' rights to perform and display works and to make the copies integral to such performances and displays for digital distance education, making the rights closer to those provided for face-to-face teaching. The TEACH Act authorizes digitization of works for use in digital distance education to the extent authorized for face-to-face instruction as long as they are not available digitally in a format free from technological protection, but you are not authorized by the TEACH Act to digitize a whole movie. Fair use is still the best source of authority for making copies in any context.
Fair use remains important because the TEACH Act authorizes activities that are only a small subset of the uses of electronic resources educators may wish to make. For example, the TEACH Act covers in-class performances and displays only, and not digital delivery of supplemental reading materials. When it is nearly impossible to get permission for use of media from those industries that are not yet very responsive to the needs of distance educators, such as music and movies, the scope of fair use permits reasonable uses of such materials for both local and remote students. So, fair use will be helpful for using music and movies in the classroom and as supplementary materials.
The TEACH Act permits the transmission of performances of all of a nondramatic literary or musical work. Nondramatic literary works as defined in the Act exclude audiovisual works; thus, examples of permitted performances in this category in which entire works may be displayed and performed might include poetry or short story reading. Nondramatic musical works would include all music other than opera, music videos, and musicals. Reasonable and limited portions of any other performance may be transmitted. This category includes all audiovisual works such as films and videos of all types, and any dramatic musical works excluded above. Displays of any work in amounts comparable to typical face-to-face displays may be transmitted. This category would include still images of all kinds.
The TEACH Act applies only to accredited nonprofit educational institutions. The rights granted do not extend to the use of works primarily produced or marketed for in-class use in the digital distance education market, works the instructor knows or has reason to believe were not lawfully made or acquired, or textbooks, coursepacks, and other materials typically purchased by students individually. The TEACH Act covers works an instructor would show or play during class such as movie or music clips, images of artworks in an art history class, or a poetry reading. It does not cover materials an instructor may want students to study, read, listen to, or watch on their own time outside of class. Instructors will have to rely on other rights they may have to post those materials, such as the fair use statute.
Because of the many limitations of the TEACH Act, educators still have recourse to fair use to make copies, create derivative works, display and perform works publicly, and distribute them to students. The University of Texas system provides a checklist to help determine if you are properly applying the TEACH Act at (http://www.utsystem.edu/ogc/intellectualproperty/teachact.htm).
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