What Is the TEACH Act?

The T.E.A.C.H. Act is the Technology, Education And Copyright Harmonization Act of 2002 and was signed into law by President Bush on November 2^nd, 2002.

A good question to ask is this: Is the TEACH Act right for my use of copyrighted materials in distance education?" And as a corollary, if it isn't right for your distance education program, what else can you do? You have options and there are six choices from which you can mix and match. These are:

1. Don't use any copyrighted materials at all. This really is not a viable option but some content-providers, if left to their own devices, would prefer this option.
2. Continue to do what you are doing now, viz., obtain licensing for copyrighted materials that require permission to transmit.
3. Rely more heavily on the doctrine of Fair Use as codified in §107 of the Copyright Law. More information on fair use can be found under Related Links.
4. Use free materials. These would include materials from the Internet that are legally royalty free, public domain, or other works that might have been expressly created for free distribution. More information on these types of materials can be found at our main page.
5. Rely on The TEACH Act. A much more thorough discussion of the Act follows below.
6. Use the CONFU Multimedia Guidelines.These Guidelines are not the law but may be used either in conjunction with the other five options or as a standalone option.More information on these Guidelines are under Related Links. 

Prior to the TEACH Act distance educators had a major obstacle in the Copyright Law to comply with and that was Section 110(2). This section of the Law actually prohibited the transmission of performances of copyrighted materials without first obtaining permission of the copyright holder on both the Internet and in our IHETS TV courses or any other kind of transmission, including 2-way, video streaming, etc. The old §110(2) of the Law made a trichotomy of distinctions that made seeking permission mandatory:

Dramatic works vs. Nondramatic works
Performances of works vs. Displays of works
Sequential materials vs. Nonsequential materials

The types of works or materials colored in red required permission to transmit. Those materials on the left in green required no permission or licensing at all to use in distance education courses. To remedy this negative distance education trichotomy, The T.E.A.C.H. Act was crafted and was made the Law of the Land on 11-02-02. What does the TEACH Act do to assist distance education?

Basic Changes in The TEACH Act

This law made five fundamental changes that assist distance education.

1. The categories of works that can be performed now include limited and reasonable portions of works that used to require permission and/or licensing. However, this does not include using clips from works produced primarily for educational purposes. As an example, if you want to use a video from the ASCD, The Association for Supervision and Curriculum Development, which specializes in exclusive productions for educational purposes, you will still need their permission to transmit their material which is produced for educational purposes.

   In §110(1) of the Copyright Law there are no limits to and no permissions required for the use of copyrighted materials in the face-to-face classroom. Unfortunately, the very welcome change in §110(2) still does not fully allow all of those face-to-face rights as provided in §110(1). Consequently, and please note this, that the use of audio/visual works and dramatic music works are limited to "reasonable and limited portions." In other words, "reasonable limited portions" means the use of clips of copyrighted audiovisual & dramatic musical works in distance education.

   What about those "reasonable and limited portions?" Here's what the TEACH Act means by "reasonable and limited portions." The law now allows the display of any work [within the context of The TEACH Act] in "an amount comparable to that typically displayed in the course of a live classroom setting." In other words, whatever amount of a copyrighted work you would use in a face-to-face setting you can now legitimately use in a transmission. No more than that, however.

2. Another laudable change in The TEACH Act involves the fact that the restrictive, archaic requirement of a physical classroom is now eliminated. That physical, face-to-face classroom concept of four walls, a ceiling and a floor is now removed from consideration in the use of copyrighted materials. This is also a welcome change and an acknowledgment of the reality of remote students. This important change now allows students to access digital materials in a course whenever and wherever they have access to a laptop or a PC.
3. The storage of copyrighted materials on a server is now allowed which makes available both synchronous and asynchronous use of copyrighted performances and displays [within the limited portions restrictions, of course].
4. Digitized versions of analog works can be made that are not available in a digital format. In addition, digital works with no encryption can be used. Something very surprising about encrypted works is discussed below.
5. Faculty, staff and students involved in distance education are now not liable for copyright infringement because of those temporary, cache copies that are made due to the digital process of making digital transmissions. This was accomplished by adding §112(f) to the ephemeral recording section of the Copyright Law.

Mediated Instructional Activities

A new, major concept in The TEACH Act is this: mediated instructional activities [or MIA]. The MIA means a couple of things. First of all, it means that an instructor should be present in the accredited distance education environment. Secondly, the MIA limits the types of copyrighted materials used in distance education to the same kinds of materials a face-to-face lecture would use in a face-to-face class. For example, if you use a 4-minute clip from Casablanca in your face-to-face History 210 classroom, you can use that same clip in your distance education course. Of course, you can use less but you cannot use more and comply with the MIA requirement of The TEACH Act.

Again, whatever an instructor would display or perform during a face-to-face course can now be used legitimately and legally in a distance education course.With caveats of course: besides owning the necessary legitimate copy of the work, we have four, basic requirements.

1. The performance or display must be related to the teaching content.

2. The performance or display must be technologically limited to enrolled students.

3. The audio/visual transmission must be encrypted and/or password protected.

4. You cannot retain copies past the class session. And just what is a class session? The new Law does not provide any assistance. Therefore, just what a "class session" is needs a definition from someone, probably the same person making decisions of a fair use analysis. This might be the faculty member, or a department chair, or someone else who has the authority to make decisions for the college or university.

In sum then, The TEACH Act in digital transmissions:

1. Only covers in-class performances [with the provisos mentioned above].

2. Only covers in-class displays [with the provisos mentioned above].

3. And for any other distance education activity, for example, supplementary materials such as articles, fair use will probably need to be relied on.Failing fair use, permission and/or licensing will need to be obtained for transmitting the copyrighted material(s).

The TEACH Act Digitization Do's and Don'ts

Here's some digitization information from The TEACH Act:

The TEACH Act Troika, or Hat Trick

The TEACH Act has a three sets of requirements. These requirements need to be fulfilled in order to qualify for the distance education exemptions in the TEACH Act. Some of these requirements you might very well have in place but others may have to be implemented and put in place. And please be advised of this: No one right now knows just what amount is enough to qualify for the TEACH Act or if ALL of these requirements are to be met and in place in order to qualify.

• We hereby affirm that we are an accredited educational institution
• We have policies regarding copyright in place
• We have copyright informational materials available to the academic community
• We have copyright description materialsavailable to the academic community
• We have copyright compliance materials available to the academic community
• We have copyright notices to the students re: copyrighted materials in the distance education course
• We promote an environment of compliance with the Copyright Law
• We promote an environment of responsibilities under the Copyright Law
• We promote an environment to decrease unintentional and uninformed acts of infringement
• We have verified that the students are officially enrolled in the distance education course
• We hereby affirm that the mediated instructional materials being used are legally purchased, copyrighted protected materials

2.    The Technological Involvement has 9 requirements. The requirements are presented in the form of a checklist from the point of view of those involved with technology:

• We are preventing retention of the copyrighted work(s) past the class session
• We are preventing unauthorized further dissemination of the work(s)
• We ensure that encryption or other technological measures to prevent retention are not being circumvented
• We ensure that only anticipated, authorized enrolled recipients have access to the class session and mediated instructional materials
• We ensure that these students are verified for transmission reception through password access or other similar measures
• We ensure that any digital versions of any mediated instructional materials are subject to technological protection
• We ensure that analog materials converted to digital are not available in that digital format
• We ensure that analog materials converted to digital entailing portions are authorized to be performed or displayed under section 110(2) of the Copyright Law
• We ensure that analog materials converted to digital are in compliance with section 112(f)(2) of the Copyright Law
  
  

• As instructor, I affirm that the performance of copyrighted material(s) is an integral part of my class session
• As instructor, I affirm that the display of copyrighted material(s) is an integral part of my class session
• As instructor, I affirm that the performance of copyrighted material(s) is directly related and of material assistance to the teaching content of the transmission
• As instructor, I affirm that the display of copyrighted material(s) is directly related and of material assistance to the teaching content of the transmission
• As instructor, I affirm that the mediated instructional activities materials being performed would be an integral part of my face-to-face classroom
• As instructor, I affirm that the mediated instructional activities materials being performed are analogous to my face-to-face classroom use
• As instructor, I affirm that the mediated instructional activities materials being performed are under my control
• As instructor, I affirm that the mediated instructional activities materials being performed are under my actual supervision
• As instructor, I affirm that the mediated instructional activities materials being displayed would be an integral part of my face-to-face classroom
• As instructor, I affirm that the mediated instructional activities materials being displayed are analogous to my face-to-face classroom use
• As instructor, I affirm that the mediated instructional activities materials being displayed are under my control
• As instructor, I affirm that the mediated instructional activities materials being displayed are under my actual supervision
• As instructor, I affirm that any displays and performances of mediated instructional activities materials are not ancillary materials
• As instructor, I affirm that any displays and performances of mediated instructional activities materials are not used for entertainment of the students
• As instructor, I affirm that any displays and performances of mediated instructional activities materials are not used as unrelated background material
• As instructor, I affirm that the mediated instructional activities materials will not displace a textbook
• As instructor, I affirm that the mediated instructional activities materials will not displace a course pack
• As instructor, I affirm that the mediated instructional activities materials will not displace e-reserves
• As instructor, I affirm that the mediated instructional activities materials will not displace digital library resources
• As instructor, I affirm that the mediated instructional activities materials will not displace other material in any media
• As instructor, I affirm that the mediated instructional activities materials will not displace copies of phonorecords specially sold to students for independent use and retention

Is The TEACH Act Right for You and Your Distance Education Course?

Obviously, it depends. As many as 41 requirements need to be met in order to take advantage of the exemptions that The TEACH Act offers. Most copyright lawyers are of the opinion that all 41 requirements need to be complied with. But as mentioned above, there are other options to having to comply with all 41 requirements of The TEACH Act. One option may require licensing fees if permission needs to be obtained but sometimes licensing fees can be exorbitantly high with the result being that the cost for licensing cannot be met and the students suffer. Fair use may assist as well, but a true, fair use analysis has to be made in order to qualify for the fair use exemption.

The best solution is to make judicious use of all five of the viable options and exemptions listed above. Assistance is available. Please contact Dr. Fritz Dolak for any questions or concerns about The TEACH Act and other options available for your distance education course.