Information Update - Spring 2004

The TEACH Act and Fair Use of Copyrighted

The passage of the TEACH (Technology, Education and Copyright Harmonization) Act of 2002 has been generally welcomed by the academic community as a corrective to the ambiguity of the Copyright Act of 1976 and the Digital Millennium Copyright Act of 1998. As written, the law had left libraries and educational institutions liable for copyright infringement if they used the same materials for distance students as for face-to-face students.
The right of educators to display and perform others’ works in face-to-face classrooms has always been permitted by Section 110(1) of the Copyright Act. The sticking point in the law with regard to distance education was the wording in Section 110(2)of the Act that only allowed the transmission of works “when the transmission is made primarily for reception in classrooms or similar places normally devoted to instruction.” Obviously a student sitting in front of a home computer taking a class over the Internet did not meet this description. The law, written pre-Internet, had not kept up with modern technology.
The DCMA, a significant amendment to copyright law designed to update the law to protect digital works like computer software, did not rectify the problem but rather deferred the matter to the Copyright Office in 1998, directing it to submit a report to Congress which would offer “recommendations on how to promote distance education through digital technologies, including interactive digital networks, while maintaining an appropriate balance between the rights of copyright owners and the needs of users of copyrighted works.” The Copyright Office subsequently issued their “Report on Copyright and Digital Distance Education” in 1999, and the TEACH Act was the eventual result, passed and signed into law in 2002. The Act now allows distance educators greater freedom (although not quite as much as for face-to-face teaching) when performing and displaying copyrighted works to distance students and also now allows the making of copies of performances and displays for asynchronous use.
While expanding educators’ rights to use materials in distance education, the TEACH Act of 2002 does not, of course, cover the digital delivery of supplemental or required readings and works that students study outside of class time. Works viewed in a course during “mediated instructional activities” are covered by the TEACH Act; but supplemental or required works that students view on their own time outside of class are not covered.
For such works, educators may, of course, use the electronic reserves system available through their library. Traditional reserves programs have always operated under the Fair Use exception to the Copyright Act (Section 107); electronic reserves programs have tended to operate under a variety of complex guidelines and protocols. However, since passage of the TEACH Act librarians and faculty alike have been encouraged in claiming Fair Use for electronic reserves. On November 19, 2003, the Association of Research Libraries issued their statement, "Applying Fair Use in the Development of Electronic Reserves," signaling a concerted effort on the part of academic libraries to assert their right to the fair use of copyrighted materials. To date, all of the major American library associations have signed the statement, including the American Library Association, the Association of College Research Libraries, the Association of Law Libraries, the Medical Library Association, and the Special Libraries Association.

Passage of the TEACH Act represents the recognition by Congress of the importance of distance education as well as the importance of protecting the educational use of copyrighted materials, and educators and librarians alike have been encouraged by this latest development.

For Further Reading
American Library Association. (November 19, 2003). Distance Education and the TEACH Act.
University of Texas. Office of General Counsel. Intellectual Property Section. (2002). The TEACH Act..
Association of Research Libraries. (November 2003). Applying Fair Use in the Development of Electronic Reserves.
Linda Neyer