Major Copyright Bill Affecting Distance Education Becomes Law

On November 2nd, 2002, the "Technology, Education and Copyright Harmonization Act" (the TEACH Act), part of the larger Justice Reauthorization legislation (H.R. 2215), was signed into law by President Bush. TEACH redefines the terms and conditions on which accredited, nonprofit educational institutions throughout the U.S. may use copyright protected materials in distance education-including on websites and by other digital means-without permission from the copyright owner and without payment of royalties.

TEACH establishes new opportunities for educators to use copyrighted works without permission and without payment of royalties, but those opportunities are subject to new limits and conditions. The American Library Association joined with numerous other associations and groups representing educators, librarians, and academic administrators to negotiate the language of the TEACH Act and to vigorously support its passage. The process of drafting the TEACH Act necessarily reflected the views of diverse interests, and some terms we would like to have seen in the law met with strong opposition from copyright owners concerned about protecting their creations and preventing widespread threats to their markets. On the other hand, the ALA and many other library and education groups were successful in adding many provisions in the bill that can significantly enhance distance education.

To put the complexity of the issue in perspective, we need to grasp not only the growth of distance education, but also the magnitude of the copyright concerns at stake. Many materials that educators use in the classroom and in distance education are protected by copyright law. Copyright protection applies to most text, videos, music, images, motion pictures, and computer software; protection usually applies even if the work lacks a copyright notice and is not registered with the U.S. Copyright Office. Unless the work is in the public domain, or you have permission from the copyright owner, or you are acting within fair use or one of the specific, statutory exceptions, your copying, digitizing, uploading, transmitting, and many other uses of materials for distance education may constitute infringement.

Previous law did include such a statutory exception for the benefit of distance education, but it was enacted in 1976 and has failed to meet modern needs. That statute (Section 110(2) of the Copyright Act) generally encompassed closed-circuit television transmissions, and it could not foster robust and innovative and digital educational programs that might reach students at home, at work, or at any other location. The TEACH Act repeals that statute and replaces it with a more complex, but more beneficial, revision of Section 110(2) and related provisions.

Among the benefits of the TEACH Act for distance education are an expansion of the scope of materials that may be used in distance education; the ability to deliver content to students outside the classroom; the opportunity to retain archival copies of course materials on servers; and the authority to convert some works from analog to digital formats. On the other hand, the TEACH Act conditions those benefits on compliance with numerous restrictions and limitations. Among them are the need to adopt and disseminate copyright policies and information resources; implementation of technological restrictions on access and copying; adherence to limits on the quantity of certain works that may be digitized and included in distance education; and use of copyrighted materials in the context of "mediated instructional activities" akin in some respects to the conduct of a traditional course.

Therefore, to secure full benefits of the law, educators and their colleges, universities, schools, and other qualified institutions will need to take deliberate and careful steps. Full implementation will likely involve participation by policymaking authorities, technology officials, and instructional faculty. Librarians will invariably be closely involved as they make their collections and other resources available to students at remote locations. Moreover, you will most assuredly need to consult legal counsel at your institution to be certain you are properly implementing the new law's provisions.

To help with this effort throughout the country, the American Library Association is launching an initiative to provide guidance and to help interested persons so that they may better understand the new law and implement its requirements. We have posted and will continue to update summaries and explanations of the law, together with guidance and other information to help the community enjoy the advantages of the new law and to strengthen innovative educational programs through the sharing of important information resources.

Moreover, we will take this opportunity for a fresh examination of the more general law of "fair use" as applied to distance education. Fair use was, and remains, a vital alternative whenever a more specific statute-such as Section 110(2) of the Copyright Act-fails to meet your needs. However, fair use also has limits. In the meantime, you can find a great deal of information about fair use on numerous websites, and in many books, including some copyright publications available from the ALA.

We welcome your comments and observations at any time about this project. For more information, contact Carrie Russell, Copyright Specialist at ALA's Office for Information Technology Policy, crussell@alawash.org or (800) 941-8478.