The TEACH Act: How Did We Get Here?
"Why don't the laws that apply in the physical classroom apply in the online classroom?". The Copyright Committee is asked this question quite a bit and the questioner is usually asking with no small amount of frustration in their voice. It's hard to answer that question without editorializing about the legislative history of the TEACH Act but the short answer is that, as distance education began to become commonplace there was an effort to update the Classroom Use Exception that we as educators have always relied upon to give us broad latitute to display and perform copyrighted materials in our classroom to apply to the distance education classroom. There was great fear on the part of content owners that digital copies of their works in online classrooms would lead to wide scale piracy. Thus the TEACH Act was born. TEACH is nice, when it works, because it does give us the clarity to know that our use is legal. But it definitely imposes much greater restrictions on the online instructor than are felt by the face-to-face instructor.
Keep in mind, the only part of the law that really differs for the distance classroom vs the face-to-face classroom is the Classroom Use Exception. Online instructors still benefit from fair use and, in many cases, we can make fair uses of materials that would not meet the extensive requirements of the TEACH Act.
Using the TEACH Act
TEACH has a big long laundry list of criteria that must be true in order to make use of its protections. Many you can assume to automatically be true for classes you are teaching at PCC. These include:
- You are teaching at an accredited, nonprofit educational institutional or governmental body.
- You have an institutional policy that addresses the use of copyrighted materials and promotes compliance with U.S. copyright law.
- You as the instructor are individually responsible for copyright compliance.
- Your institution provides educational resources that accurately describe copyright rights and responsibilities.
- Your institution has implemented reasonable measures to prevent retention of the works for longer than the class session. PCC is hosting the video on the streaming server and will not give a downloadable version to students.
- Your institution has implemented reasonable measures to prevent unauthorized further dissemination by the recipients.
- There is a notice accompanying the work notifying students that the work may be protected by copyright.
The following are the criteria that you'll need to actively evaluate if you want to make use of TEACH:
- If the work is a non-dramatic literary or musical work you can post entire works
- If the work is a dramatic literary or musical work, you can only post "limited and reasonable" segments
- The work is an integral part of the class session.
- The work is part of systematic mediated instructional activities. This means you will facilitate the students' use of the work.
- The work is directly related and of material assistance to the teaching content.
- You will display an amount comparable to that which is typically displayed in the course of an in-person classroom setting.
- You will only make the work available to students during the relevant instructional module. It should not be available for the entire length of the course.
- The work will only be available to students who are enrolled in the course.
- The work was lawfully made and acquired.
- The work was not created as a digital educational work. If it was, the TEACH Act does not apply.
- The work is not a textbook, course pack, or other commercial educational work. If this is a title students would otherwise be required to purchase for your class, it will not be covered by the TEACH Act.
- There is no reasonably priced streaming version of the work available to the institution.
PHEW! Quite a list! If your use and material meet all of the criteria above, congratulations! Your use is protected by TEACH. TEACH is great when it applies because it gives you the peace of mind that comes with knowing in clear terms that you are not making an infringing use. If your use does not meet all of the above criteria, don't despair! Your use might still be a fair use. Fair use doesn't always offer us the same peace of mind but it makes up for it by being a flexible and dynamic doctrine designed to support a wide variety of beneficial uses of copyrighted material.
Peggy Hoon's terrific toolkit for deciphering TEACH at UNC Charlotte. Includes clear checklists that can help you sort through the requirements.
"Copyright Law and Distance Education: Overview of the TEACH Act "
This paper by Kenneth Crews (Columbia) is a good primer and overview for educators from one of the leading experts on copyright as it applies in libraries and higher ed.