Copyright law provides educators with a separate set of rights in addition to fair use, to display (show) and perform (show or play) others' works in the classroom. These rights are in Section 110(1) of the Copyright Act and apply to any work, regardless of the medium.
Until recently, however, when the classroom was remote, the law's generous terms for face-to-face teaching in Section 110(1) shrank dramatically in Section 110(2) -- some would say to the vanishing point!
These severe limitations on what could be performed in distance education received lots of attention. In 1998, Congress directed the Copyright Office to prepare a report recommending what should be done to facilitate the use of digital technologies in distance education. The Copyright Office prepared its report and recommended significant changes. The TEACH Act became law in late 2002.
The TEACH Act expands the scope of educators' rights to perform and display works and to make the copies integral to such performances and displays for digital distance education, making the rights closer to those we have in face-to-face teaching. But there is still a considerable gap between what the statute authorizes for face-to-face teaching and for distance education. For example, as indicated above, an educator may show or perform any work related to the curriculum, regardless of the medium, face-to-face in the classroom - still images, music of every kind, even movies. There are no limits and no permission required. Under 110(2), however, even as revised and expanded, the same educator would have to pare down some of those materials to show them to distant students or make them available over the internet to face-to-face students. The audiovisual works and dramatic musical works may only be shown as clips -- "reasonable and limited portions," the Act says.
This disparity, coupled with the considerable number of additional limits and conditions imposed by the statute, has lead some educators to conclude that it's more trouble than it's worth to rely on Section 110(2). This statute's complexity provides a new context within which to think about fair use: compared to the many conditions and limits contained in Section 110(2), the four factor fair use test seems, simple and elegant. That's a good thing, because even if we rely on and find 110(2) helpful, fair use will still figure heavily in our exercise of performance rights because putting anything online requires making a copy of it. The TEACH Act authorizes us to digitize works for use in digital distance education, but only to the extent we are authorized to use those works in Section 110(2), and so long as they are not available digitally in a format free from technological protection. So, for example, where 110(2) authorizes the use of movie clips and the available DVDs don't permit ripping (a prerequisite to creating a digital "clip"), you can digitize those parts using an analog tape; but you are not authorized by the TEACH Act to digitize the whole movie. Fair use is almost always going to be the best source of authority for making copies in any context, but especially in conjunction with statutes like 110(2) that give us specific authorization that may not be sufficient in a particular case.
Fair use also remains important because the in-classroom activities (even if the classroom is virtual) the TEACH Act authorizes are a small subset of the uses of electronic resources educators may wish to make. It only covers in class performances and displays, not, for example, digital delivery of supplemental reading, viewing, or listening materials. For those activities, as well as many others, we'll need to continue to rely on fair use. Remember, however, when relying on fair use, the fair use test is sensitive to harm to markets. This means that in general, where there is an established market for permissions, there will often be a narrower scope for fair use. In practical terms, this means that where it's easy to get permission, for example, to put text materials on reserve, our reliance on fair use should be limited. On the other hand, where it's near impossible to get permission, for example, for music and movies where those industries are not yet very responsive to the needs of distance educators, the scope of fair use expands to permit reasonable uses of such materials for both local and remote students. So, fair use will likely be very helpful for using music and movies in the classroom and as supplementary materials. See fair use of copyrighted materials for more information on fair use.
Section 110's role in the balance of interests has always been to permit educators to share works with their students, to show others' works in class. In its exclusion of meaningful rights for digital distance educators, Section 110 was failing to carry its weight, so to speak. It had been, in effect, "written out" of the statute by being obsolete. Now it has been expanded to permit educators to show materials the statute did not cover before; however, new Section 110(2) significantly limits who may display and perform how much of what materials and under what circumstances. The TEACH Act checklist, summarizes the 22 (!) prerequisites. Nevertheless, we may be optimistic that, together with fair use, this new statute will achieve Congress' goal of facilitating the use of digital technologies in distance education.
Section 110(2)'s expanded rights:
Exclusions from coverage
Not everyone, nor every work, is covered. Section 110(2) only applies to accredited nonprofit educational institutions. The rights granted do not extend to the use of works primarily produced or marketed for in-class use in the digital distance education market; works the instructor knows or has reason to believe were not lawfully made or acquired; or textbooks, coursepacks and other materials typically purchased by students individually.
This last exclusion results from the definition of "mediated instructional activities," a key concept within the expanded Section 110(2) meant to limit it to the kinds of materials an instructor would actually incorporate into a class-time lecture. In other words, the TEACH Act covers works an instructor would show or play during class such as movie or music clips, images of artworks in an art history class, or a poetry reading. It does not cover materials an instructor may want students to study, read, listen to or watch on their own time outside of class. Instructors will have to rely on other rights to post those materials, such as the fair use statute, or get permission.
Authority to make copies:
Finally, a new section was added to the Copyright Act to authorize educators to make the copies necessary to display and perform works in a digital environment. New Section 112(f) (ephemeral recordings) works with Section 110 to permit those authorized to perform and display works under 110 to copy digital works and digitize analog works in order to make authorized displays and performances so long as:
Because of the many limitations, Section 110(2) won't go far enough in many situations; remember that educators still have recourse to fair use to make copies, create derivative works, display and perform works publicly and distribute them to students. So, don't be discouraged by Section 110(2)'s scope and complexity. If it covers what you want to do and you and your institution can comply with all of its conditions and limitations, great! If it does not, you still have the fair use statute.
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