Copyright & Intellectual Property
Copyright at UVM
» TEACH Act Information
Because the University of Vermont is legally responsible for copyright infringement, employees of the University must comply with copyright laws. The current copyright law (Title 17, United States Code) took effect January 1, 1978.
Faculty developing online courses or using the web to distribute copyrighted materials to their students need to understand the Technology Education and Copyright Harmonization (TEACH) Act. This act, as of November 2002, updates copyright law to address issues pertaining to transmission of performances and displays of copyrighted materials. Such transmissions are critical to higher education distance education efforts, including online courses. Faculty and students often wish to incorporate some or all of the copyrighted work of others into course materials that are to be digitized and transmitted for distance education.
In the past, this could sometimes be lawfully accomplished via the fair use provisions of the copyright act (17 U.S.C. 107) and/or the performance/display exemptions (917 U.S.C. § 110(2)) of the copyright act. In November 2002, the performance and display exemptions of the copyright act were revised and updated to address the digital environment. The revised provisions facilitate digital educational use of materials for coursework without requiring copyright permission, subject to several conditions. Most of the TEACH Act requirements are designed to allow transmission of copyrighted works (or parts thereof) to a legitimate student audience for a limited time, without permission or license fees, while preventing dissemination that could undermine the market for the works.
The TEACH Act allows teachers and students at an accredited, nonprofit educational institution to transmit performances and displays of copyrighted works as part of a course without violating copyright law, if certain requirements are met. If these requirements are not or cannot be met, use of the material will have to qualify as a "fair use" or permission from the copyright holder(s) must be obtained. Most of the TEACH Act requirements are designed to allow transmission of copyrighted works (or parts thereof) to a legitimate student audience for a limited time, without permission or license fees, while preventing dissemination that could undermine the market for the works.
The information provided on these pages has been provided by Lucy Singer, Administrative Counsel, UVM Office of General Counsel.
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TEACH Act: Overview
In general, faculty who want to incorporate works into digital transmissions for instructional purposes pursuant to the TEACH Act must:
- Avoid use of commercial works that are sold or licensed for purposes of digital distance education.
- Avoid use of pirated works, or works where you otherwise have reason to know the copy was not lawfully made.
- Generally limit use of works to an amount and duration comparable to what would be displayed or performed in a live physical classroom setting. The TEACH Act does not authorize the digital transmission of textbooks or coursepacks to students.
- Supervise the digital performance or display, make it an integral part of a class session, and make it part of a systematic mediated instructional activity. In other words, the faculty should interactively use the copyrighted work as part of a class assignment in the distance education course. It should not be an entertainment add-on or passive background or optional reading.
- Use software tools to limit access to the works to students enrolled in the course, to prevent downstream copying by those students, and to prevent the students from retaining the works for longer than a "class session."
- Notify the students that the works may be subject to copyright protection and that they may not violate the legal rights of the copyright holder.
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TEACH Act: Requirements (Overview)
Who may obtain the benefits of the TEACH Act?
Accredited Nonprofit Educational Institution or Governmental Body
What materials otherwise protected from display or reproduction may be transmitted?
Performances of nondramatic literary works;
Performances of nondramatic musical works;
Performances of reasonable portions of any other work;
Display of any other work in an amount comparable to that typically displayed in a live classroom setting
Digital educational works (Works produced or marketed primarily for performance/display as part of mediated instructional activities or transmitted via digital networks);
Unlawful copies (copies you know or reasonably should know were not lawfully made or acquired);
Under what circumstances can covered works be transmitted?
By, at the direction of, or under the actual supervision of an instructor; and
As an integral part of a class session, and
As part of systematic mediated instructional activities, and
Directly related and of material assistance to the teaching content
How must the transmission be conducted?
- Transmission must be solely for, and the reception limited to, (as technologically feasible) students enrolled in the course, and
- Downstream controls must be instituted: Technological measures that reasonably prevent:
- Retention in accessible form for longer than a class session, and
- Unauthorized further dissemination in accessible form, and
- No interference with copyright holder's technological measures that prevent such retention and dissemination
Requirements for an institution to be covered by the TEACH Act:
Promulgate copyright policies; and
Provide accurate information about copyright; and
Promote copyright compliance; and
Provide notice to students that course materials may be copyrighted
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TEACH Act: Glossary
- Accessible Form: Measures that do not cause the destruction of or prevent the making of a digital file leave the work in "accessible form." For example, if a work is merely encrypted and the recipient is given the key, then it is in accessible form.
- Accreditation: For a post secondary educational institution, accreditation is as determined by a regional or national accrediting agency recognized by the Council on Higher Education Accreditation or the U.S. Department of Education. Institutions qualify for accreditation for TEACH Act purposes at the institutional level (not the course level). This means that all courses at a qualifying institution are eligible to use TEACH Act covered materials, whether or not the course is part of a degree or certificate granting program.
- By, at the direction of, or under the actual supervision of the instructor: The legislative history indicates that this phrase does not mean that the instructor is the only one who can post the materials to be performed or displayed. Someone enrolled in the class can also post as long as there is actual supervision by the instructor, i.e., not in name only. "Actual supervision" does not require constant or real-time supervision or prior approval.
- Class Session: A class session is generally that period during which a student is logged on to the server of the institution making the display or performance. It is likely to vary with the needs of the student and with the design of the particular course. A particular class session cannot last for the entire semester, but the materials can remain on the institution's server for the duration of its use in one or more courses. The materials may be accessed by a student EACH time the student logs on to participate in the particular class session of the course in which the display or performance is made.
- Display [from 17 USC 101]: To display a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.
- Lawfully Made: includes not only materials made with the permission or under the authority of the copyright holder, but also those made under the authority of the
copyright act, such as "fair use" copies.
- Literary Works [from 17 USC 101]: Literary works are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.
- Mediated Instructional Activities: Mediated instructional activities are activities that use permitted works:
- as an integral part of the class experience
- under the control or actual supervision of the instructor
- in a manner analogous to performances and displays in live classroom settings
According to the Senate Report (p.10), such activities must use the works as part of the course rather than ancillary to it. Thus, the TEACH exemption would not include supplemental reading such as coursepack materials. The report also indicates that e-reserves are not included if they are not analogous to the performances and displays of a live classroom setting.
Nondramatic vs. Dramatic: The Copyright Act does not define "nondramatic" or, for that matter, "dramatic." According to the U.S. Copyright Office, a dramatic work is "'a written or literary work invented and set in order' in which the narrative is not related but is represented by dialogue and action." It is "a work in which the narrative is told by dialog and action, and the characters go through a series of events which tell a connected story..."
There seem to be but two essential elements for a dramatic composition: (1) that it relate a story, and (2) a substantial portion of the story is visually or audibly represented to an audience as actually occurring, rather than merely being narrated or described. Thus, performances of a nondramatic literary work would include readings from textbooks, novels, and poetry. Dramatic works would be exemplified by stage plays.
- Officially enrolled in the course: This requirement is not intended to impose a general requirement of network security. Rather, it means that recipients should be identified and the transmissions limited to such identified, authorized recipients.
- Performance: To "perform a work" means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.
- Public performance or display: To perform or display a work "publicly" means -
- to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintance is gathered; or
- to transmit or otherwise communicate a performance or display of the work to a place specified by clause (a) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
- Reasonable and Limited Portion: As used in the TEACH Act, the 'reasonable and limited portion' requirement applies to the performance of any type of work (other than nondramatic literary or musical works which can be performed and transmitted in their entirety). In determining what is reasonable and limited one should take into account both the nature of the market for that type of work and the pedagogical purposes of the performance. For displays of works, a "reasonable and limited portion" is that amount that would have been used in a live classroom setting.
Technologically Feasible or Technological Measures that Reasonably Prevent Retention and Further Dissemination: This requirement does not impose a duty to guarantee that retention and further dissemination will never occur. Nor does it imply that there is an obligation to monitor recipient conduct. Moreover, the "reasonably prevent" standard should not be construed to imply perfect efficacy in stopping retention or further dissemination. The obligation to "reasonably prevent" contemplates an objectively reasonable standard regarding the ability of a technological protection measure to achieve its purpose.
Examples of technological protection measures that exist today and would reasonably prevent retention and further dissemination, include measures used in connection with streaming to prevent the copying of streamed material, such digital rights management systems that limit access to or use of encrypted material downloaded onto a computer.
- Transmit: To transmit a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.
- Works produced or marketed primarily for performance/display as part of mediated instructional activities transmitted via digital networks: Works covered by this are just what it says - digital educational materials. It does not apply generally to all educational materials, all materials with educational value, or those developed and marketed for use in the physical classroom.
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TEACH Act: Fair Use
What if you cannot meet the requirements of the TEACH Act. Are you then prohibited from using the materials in a distance learning course?
No. The Senate Report on the provisions of the TEACH Act provides: "Nothing in this Act is intended to limit or otherwise to alter the scope of the fair use doctrine." Fair use is accepted as a critical part of the distance education landscape. Not only instructional performance and displays, but also other educational uses of works, such as the provision of supplementary materials or student downloading of course materials, will continue to be subject to the fair use doctrine.
Fair use may allow for more than a limited portion of a dramatic work in a distance education program in appropriate circumstances. The TEACH Act recognizes the following:
- the fair use doctrine is technologically neutral and applies to activities in the digital environment; and
- the lack of established guidelines for any particular type of use does not mean that fair use is inapplicable.