The TEACH Act and some Frequently Asked Questions

Prepared by: Kenny Crews

Fundamentals of the Law

Q: Am I required to use and apply the TEACH Act to my distance education program?
A: No. The Teach Act applies only if you choose to use it. It is one option for the lawful uses of copyrighted works. You can still turn to fair use or licensing.

Q: Many articles and other materials about the TEACH Act cite it as S.487, but when it passed, it was reported as H.R. 2215. What is it?
A: Washington works in mysterious ways. The bill was long in Congress as "S.487," but in the final days leading to the end of the 107th Congress, it was appended to an appropriations bill for the Department of Justice. Passage is passage, and the president's signature is still on the bill, even if it was ultimately buried in a longer bill under a different name. TEACH is Subtitle C of Title III of H.R. 2215.

Q: The President signed the bill on November 3, 2002. When does it actually become law?
A: The law went into effect immediately upon signature by the President.

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The Scope of the TEACH Act

Q: Does the TEACH Act allow us to use materials in distance education on the same terms that we may use copyrighted works in the traditional face-to-face classroom?
A: No. Section 110(1) of the U.S. Copyright Act applies to the "performance" or "display" of copyrighted works in the traditional classroom, and it is a broad and generous provision. It is brief and sets forth few limitations. These activities are not infringements of copyright: "performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction. . . ." The law does bar uses of audiovisual works that might be unlawful copies. Keep in mind that this statute allows displays and performances. It does not apply to making copies of any works. For that issue, you generally need to turn to fair use.

Q: What kind of institutions or organizations can use the TEACH Act?
A: The Teach Act applies to any non-profit, accredited educational institution. For higher education, regional or national accrediting agencies recognized by the Council on Higher Education Accreditation or the U.S. Department of Education provide authorized accreditation. For primary and secondary institutions, applicable state certification or licensing agencies provide accreditation.

Q: Does TEACH apply only to schools that offer exclusively distance education, or can any school apply the new law, even ones with traditional programs and only limited distance education?
A: It may apply to a college that offers only distance education, or one that long has been a traditional institution and is moving into some distance education programming. This would also include those institutions that transmit digital materials to supplement the "live" classroom. For example, many faculty prepare course web sites or web tutorials. The TEACH Act would apply to those sites that include copyrighted works for the purpose of teaching - for example, sample tests may include copyrighted materials as an element of a test question.

Q: Does the TEACH Act apply to military training institutions that are using copyrighted materials in distance education?
A: Yes, if the institution is accredited.

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Class Sessions and Mediated Instruction

Q: What is the meaning of "class session?" How long is a class session?
A: The statute does not define the meaning of class session, but talks about the class session as a period of time analogous to the "live" class session where displays and performances would normally occur. In the "live" classroom, displays and performances occur at various times (perhaps repeatedly) and for various durations. Thus, if we are to consider the distance education classroom as analogous to the live classroom, displays and performances may vary from situation to situation. Sometimes it may be necessary to display copyrighted works for a longer period than at other times.

The legislative history also does not explicitly define class session but reminds us that displays and performances should be accessible to enrolled students only for the time period necessary. Ultimately, the instructor determines what copyrighted materials are necessary for the course and how they should be used to meet pedagogical goals.

Q: If I properly include a clip of a copyrighted work in one "class session" as part of my online course, can students continue to access that session repeatedly throughout the semester or other term of the course?
A: If repeated access is necessary to meet teaching objectives, yes, students can access the session repeatedly.

Q: Can I use the same clip of the copyrighted work in a later class session?
A: Yes. Consider this example. I am teaching in distance education this semester. In September I used a film clip, consistent with TEACH, and I left it on the server for some short duration of a "class session." The students can no longer access that session. Today is November, and I want to emphasize a point and show once again the same clip. The TEACH Act does not bar the reuse of the same clip in the context of a second class session, whether you are reinforcing an earlier point or making a new point from the same work.

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Reserves and Library Services

Q: Does the TEACH Act allow me to make articles and other materials available to students that I otherwise would have placed on reserve (or electronic reserve) with the library?
A: No. TEACH applies only to the use of materials that would ordinarily be displayed in the live classroom. Displaying an entire journal article is not an activity that generally occurs in the physical classroom, but displaying a portion of an article may be more typical - such as a graph or other model from a journal article used to illustrate a particular point.

Q: Can my distance education course include a link to copyrighted materials available on another website?
A: In general, simple linking to authorized sites (like a public website) is not a copyright violation. Some concern might arise; if you have concerns about the legitimacy of the site where you are linking, for example. But in general, links are not a copyright problem. In fact, linking straight to a work on another website or in a database is often an effective means for avoiding the copyright concerns about reproduction and the like. Libraries should negotiate their database licenses carefully to be sure that they do not attempt to prohibit such linking. Linking is a good idea and should be encouraged!

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Administration and Implementation

Q: The TEACH Act is a huge responsibility. It is worth the effort?
A: You have to answer this one yourself! The TEACH Act does offer benefits, but it comes with responsibilities and limits. Some institutions will simply not be able to put all the pieces in place. Some will be concerned about scrupulously meeting every word in the law, while others will react flexibly. Some institutions will chose to rely on permissions or fair use, and still others will not have a sufficiently ambitious distance education program to justify the added work. Each institution will need to weigh the variables and reach an independent conclusion.

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