THE TECHNOLOGY, EDUCATION AND COPYRIGHT HARMONIZATION (TEACH) ACT 

On November 2, 2002, the Technology, Education, and Copyright Harmonization Act ( TEACH Act) was signed into law by President George W. Bush.  TEACH redefines the terms and conditions on which accredited, nonprofit educational institutions may use copyright protected materials in distance education, including websites and other digital means for delivering distance education, without permission from the copyright owner and without payments of royalties.  According to Laura N. Gasaway, Director of the Law Library and Professor of Law at the University of North Carolina, TEACH makes five basic changes in the Copyright Act of 1976:

1. It expands the categories of works that can be performed in distance education beyond non-dramatic literary and musical works to reasonable and limited portions of other works, with the exception of works produced primarily for the educational market;

2. It removes the concept of the physical classroom and recognizes that a student should be able to access the digital content of a course wherever he or she has access to a computer;

3. It allows storage of copyrighted materials on a server to permit asynchronous performances and displays;

4. It permits institutions to digitize works to use in distance education when digital versions do not already exist and when the digital work is not subject to technological protection measures that prevent its use; and

5. It clarifies that participants in authorized distance education courses and programs are not liable for infringement for any transient or temporary reproductions that occur through the automatic technical process of digital transmission.

The American Library Association (ALA) has engaged Professor Kenneth D. Crews’s of Indiana University School of Law to prepare a document entitled The New Copyright Law for Distance Education: The Meaning and Importance of the Teach Act to help schools and universities  develop distance education programs that meet the legal requirements of the TEACH Act.  In order to ensure that the University meets these requirements, Dr. Crews’ document has been used in developing the University’s policy in planning and delivering distance education courses.  The policy includes institutional requirements, technological requirements, and faculty responsibilities.   

Institutional Requirements            

The Teach Act requires universities to:

1. Institute policies regarding copyright in general and policies that specify the standards that faculty must follow when incorporating copyrighted works in distance-learning materials.  As published in the Handbook, pp. 59-62, copyright infringement violates University policy;

2. Provide information to faculty, staff, and students that accurately describes and promotes compliance with copyright law. 

3. Designate an individual or individuals to make sure faculty and staff adhere to copyright policies. At the University of West Alabama, it is the department head’s  responsibility to ensure that all departmental syllabi and websites reflect the University’s copyright policy and that all faculty and staff within the department adhere to it.

Technological Requirements  

1. To the extent technologically feasible, the transmission of materials is limited to students enrolled in a course through password-restricted access or other similar measures in order to safeguard against unauthorized use, reproduction and dissemination of information. The TEACH Act specifically requires prevention of misuse through technological means, and not simply through copyright notices and licenses.  It is intended to require that access to materials on institutional servers be password protected, but it is not intended to impose general requirements on network security.  Similarly, the TEACH Act takes cognizance of the fact that if a student downloads a music or video file to a local computer, that is tantamount to acquiring a copy of the file unless it cannot be accessed in usable form beyond a classroom session.  If a student can both access and copy a file, then it can easily be redistributed to others.  The TEACH Act requires that this be prevented by technological means;

2. The University must apply technological measures that reasonably prevent works from being retained by students in an accessible form longer than is necessary for class use and prevent unauthorized redistribution of the work to others in an accessible form;

3. The University must provide notification to students that relevant materials are protected by copyright;

4. The material is available to students for a limited period of time. The statute states that information may not be accessible for transmission for longer than the “class session.” The University of West Alabama  defines “class session” as the length of time a course is taught.

5. Once the material has been used for a designated period of time, the content may be placed in storage for future use, provided it is outside the reach of students; and,

6. The University must review its technological systems to make sure that systems for the delivery of distance education do not interrupt digital rights management codes or other technological measures used by copyright owners to control their works.

Faculty Responsibilities 

1. The material must be provided at the direction of or under the supervision of an instructor and must be an integral part of the course curriculum;

2. Faculty may not distribute textbooks, supplementary texts, course packs, published online content, or any other materials that students normally buy for educational or personal use; 

3. The amount of material provided must be comparable to that typically displayed in a live classroom session.  For certain works, the display of the entire work could be consistent with displays made in a live classroom setting, e.g., short poems or essays or photographic images;

4. Faculty may use performances of non-dramatic literary work, non-dramatic musical works, and performances of all other works, including dramatic and audiovisual works, provided that only “reasonable and limited portions” of such works are performed.  In addition, the statute permits the display of any other work, provided that such work is displayed “in an amount comparable to that which is typically displayed in the course of a live classroom session;”

5. Faculty are required to participate in the planning and oversight of the distance education courses for which they are responsible. Specifically, faculty responsible for a distance education course have the obligation to ensure that the performance or display of protected content is made by them, or at their direction, or under their supervision;

6. Faculty must provide notification to students that relevant materials are protected by copyright.  An example of a notice that might be included in the syllabus is as follows:

                                     Course Website 

Because instructional materials on the course website may be copyrighted, students may not download materials on the site to their desktops, laptops or PDAs, or alter or distribute any materials on the course site, unless clearly directed to do so; and,

7. Faculty may be able to provide electronic access to copyrighted materials under the long-standing principle of “fair use.”  The TEACH Act explicitly provides:  “Nothing in the act is intended to limit or otherwise to alter the scope of the fair use doctrine.”

Exclusions

The TEACH Act does not authorize:

1. The use of works specifically created for use as distance education products;

2. The use of works that the instructor knows or has reason to believe are pirated.  This could include many copyright-protected films and much music downloaded from the Internet;

3. The conversion of print or other analog versions of works into digital formats unless:

• No digital version of the work is available; or the digital version employs technological protection measures that prevent its use; and then conversion is only permitted with respect to the portion of the work authorized to be performed or displayed under the TEACH Act’s size restrictions.

Summary/Conclusions

The Technology, Education and Copyright Harmonization (TEACH) Act of 2002 updates the 1976 copyright law to broaden faculty’s legal use of copyrighted materials in online instruction at accredited nonprofit educational institutions.  Copyrighted materials affected by this law include, but are not limited to, print, still images, audio recordings, video recordings, diagrams, charts, and graphs.

The law permits the display and performance of virtually all types of works during online instruction without the consent of the copyright owner, provided that:

·        the online instruction is mediated by an instructor; 

·        the transmission of the material is intended only for receipt by students enrolled in the course, regardless of where the students are physically located; 

·        the institution employs measures to prevent “retention of the work in accessible form by recipients of the transmission…for longer than the class session;” and

·        the institution employs measures that limit the transmission of the material to students enrolled in the particular course and precludes unauthorized students’ retention and/or downstream redistribution “to the extent technologically feasible.”  

These parameters are not broad enough to allow for entire hard copy textbooks to be digitized, nor will the new law apply to materials that are produced by the copyright owner for online instructional sales.  But it does give institutions limited rights to retain the information and provide limited student access for review purposes.  The TEACH Act also grants a limited right to digitize portions of an analog work for use in an online course if a digital version is not available.  

Institutions that want to take advantage of the TEACH Act must have copyright policies in place and must provide faculty, students, and staff members with information that “describes, and promotes compliance with, the laws of the United States relating to copyright.”  The institution also must provide students with a notice that materials may be subject to copyright protection.  

The law requires faculty to comply with specific and rigorous limitations when displaying or performing copyrighted works during online instruction.  

The law does not equate the use of copyrighted materials in online instruction with the use legally permitted for instruction in a physical classroom; therefore, faculty and institutions should not simply apply copyright law prescribed for classroom instruction to online instruction.  

The TEACH Act permits faculty to  

·        digitize portions of copyrighted materials for use during online instruction;  

·        digitize materials provided they are not already in digital format—otherwise the existing digital version must be used; and  

·        store digitized copyrighted materials on a secure server for the duration of the instructional activity.  

The TEACH Act requires faculty to  

·        inform students that  

o       the materials are copyrighted;

o       they may not download such materials to their computers;  

o       they may not revise the materials; and  

o       they may not copy or distribute the materials.  

Faculty may comply with this requirement by placing a prominent announcement on their syllabus or course website stating that because instructional materials on the site may be copyrighted, students may not download materials on the site to their desktops, laptops or PDAs, or alter or distribute any materials on the course site, unless clearly directed to do so.  

·        take reasonable actions to ensure that copyrighted materials covered by the TEACH Act are accessed only by enrolled students, and

·        insist that students use a login and password to access online instructional materials.  

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