Library Issues
Editors: Ann P. Dougherty, Mountainside Publishing; Richard M. Dougherty, University of Michigan, Emeritus
Contributing Editors: Mignon Adams, University of the Sciences in Philadelphia; Larry Hardesty, Austin College; William Miller, Florida Atlantic University; Maureen Pastine, Temple University
Vol. 23, No. 5 May 2003

Technology, Education and Copyright Harmonization Act):
Its Value is Up to You

by Carrie Russell

At long last, Congress passed copyright legislation that allows faculty and other educators at higher educational institutions the privilege of using copyrighted materials in the digital classroom without prior permission from the copyright holder. Those of you who follow such things will recall that while the Digital Millennium Copyright Act (DMCA) of 1998 was negotiated, lobbyists reached an impasse when spelling out new teaching exemptions for digital distance education. Their concerns and positions are by now not surprising.

Educators wanted to use copyrighted materials in the digital classroom in the ways that they do in the “live,” physical classroom, but content representatives feared copyrighted works in digital formats would be pirated without necessary protections and license terms. Negotiators took nearly five years to reach consensus, and the Technology, Education and Copyright Harmonization Act (TEACH) of 2003 was passed and signed into law on November 2, 2002.

While all of this was going on in Washington, distance education happened everywhere else.

Teachers used digital technology to offer remotely courses to students who could earn credits and obtain degrees without ever setting foot in a classroom.

Adult learning programs delivered via the Web thrived.

Faculty in the “live” classroom supplemented their courses with Web sites that included copyrighted works, arguing that their actions were fair uses.

Schools and campuses developed various technological means to control access to copyrighted works posted on course Web sites.

Digital distance education went on without the TEACH Act.

Do We Need TEACH?

It is understandable that administrators, faculty, and librarians reading this column now might ask, “do we need the TEACH Act?” Obviously, faculty have engaged in distance education activities and have used digital copyrighted works in the digital classroom for some time with few if any legal problems. TEACH does not come without its conditions. It requires that educational institutions jump through several hoops as a pre-requisite to using TEACH exemptions. Moreover, some of the TEACH requirements seem impossible to achieve. How should administrators and faculty respond to TEACH? Should you implement TEACH or just leave well enough alone? What are the long-term implications of choosing to ignore copyright exemptions that the copyright law allows?

TEACH Exemptions

Let’s begin by reviewing what the new amendment provides. The TEACH Act amends two sections of the copyright law —Section 110, exemptions to the right to display or perform publicly and Section 112, exemptions regarding ephemeral recordings.

Section 110: Displays and Performances. Section 110 allows educators and enrolled students to display or perform any non-dramatic literary work in the digital classroom without the prior permission of the copyright holder. Non-dramatic literary works are those works that do not involve a dramatic presentation. Graphs, charts, images, photographs, text, music, videos and DVDs (without a story) are non-dramatic literary works. Dramatic literary works (narrative motion pictures, operas, plays) can also be used in the digital classroom but in general, only in reasonable and limited portions. However, TEACH also allows that ANY work (whole or in part) can be used in the digital classroom if its use is key to the teaching objective and its use is typical of the use one would experience in the physical classroom.

These changes to Section 110 are significant because, prior to TEACH, any and all works protected by copyright, if delivered via a computer network, web site or e-mail, were not allowed, even in the physical classroom. Only some works delivered through broadcast signals were exempt.

Section 112: Ephemeral Recordings. The TEACH Act also allows that eligible institutions may copy an analog version of a copyrighted work to a digitized format for use in the digital classroom. However, certain conditions must apply. The digital copy can be made only if a digital version is not available on the market or if the digital version that is available is subject to technological protection measures that prevent its use. In addition, the digital copy can only be used for the classroom. Additional digital copies cannot be made from the copy, and the digital copy should only be retained for as long as needed to meet the teaching objective.

Is your Institution Eligible for TEACH?

Accredited, non-profit educational institutions are eligible for TEACH exemptions. Higher educational institutions must be accredited by national or regional accrediting agencies recognized by the Council on Higher Education. Primary and secondary schools must be recognized by the applicable state certification or licensing procedures for K-12 institutions. TEACH applies to both traditional distance education — where students are removed in space and in time from the instructor — and to the physical classroom where digital technologies are used to enhance learning, for example, the course web site that includes the course syllabus, supplemental materials, and lecture notes. For-profit educational institutions may not take advantage of TEACH provisions, but may find that other copyright exemptions, such as fair use, will enable them to use materials in digital distance education environments without prior authorization.

Mediated Instructional Activities

The TEACH Act requires that the use of copyrighted materials for digital learning occur within the guise of “mediated instruction.” Mediated instructional activities (Section 110)(b)(2) are supervised and initiated by the course instructors who determine that the use of copyrighted works in the digital classroom is necessary to meet teaching goals. Use of copyrighted works in the digital environment should be analogous to the activities one would experience in the “live” classroom.

Obligations and Requirements of Institutions Using TEACH

Controversy regarding the TEACH Act revolves around the requirements that eligible institutions must meet before taking advantage of the new classroom copyright exemptions. Many authorities have argued that these requirements are too onerous, time-consuming and potentially impossible to achieve. Because the statute is written in a terse, non-informative fashion, it is easy to see how one might read the law as far too burdensome. Others have argued that, if one reads the legislative history of TEACH — the official Senate and House Reports that describe what negotiators meant when they wrote the statute — the requirements are not nearly so oppressive.

The problem, however, is that the legislative history is not the law. One cannot assume that a judge would consider the legislative history in a copyright infringement case. The importance and legal standing of legislative histories varies from court to court and from time to time. We must accept that the legislative history has only limited value. But at the same time, the more value we give it, the more value it will have.

Before dismissing TEACH altogether, let’s examine the institutional requirements. TEACH requires that eligible institutions have in place a copyright policy and copyright educational materials for faculty, students and staff of the institutional community (Section 110)(b)(D)(i). Many institutions have copyright policies and educational materials, but these documents would need to be revised to reflect recent changes to the law and highlight the effect that digital technology has had on copyright. Institutions that choose to consider the comments of all members of the educational community may find the process of copyright policy development time-consuming. However, in the end, well-crafted and thoughtful policies that include all viewpoints are more likely to be accepted and followed by the community. Perhaps the easiest TEACH obligation hurdle is that institutions must provide notices to students that materials used in the digital classroom may be subject to copyright. Notices of copyright are familiar and already used at many educational institutions.

Technological Protection Measures

The more daunting TEACH obligations are those dealing with technological measures taken by the institution to protect copyrighted works from unauthorized access, copying and distribution. The TEACH Act states that the transmission of copyrighted works must be made solely for and to the extent technologically feasible for the reception of students enrolled in the course (Section 110)(c). The ACT does not require, nor is it possible to ensure, 100% effectiveness. Most faculty already use password protection to limit access to the course web site to registered students. However, faculty should use passwords in the most effective way possible. Passwords should be changed from semester to semester and should not be obvious — e.g. “english101.” In addition, some educational institutions require that each student have a Personal Identification Number (PIN) that grants course enrollment. Both of these technological insurances are effective in limiting access to authorized students.

TEACH also states that technology should be used to reasonably prevent the retention of copyrighted works in accessible forms for any time longer than the class session, and that technology should be used to reasonably prevent the further dissemination of the work to others (Section 110)(d)(ii). Again, complete effectiveness is not possible nor does the law require it. Institutions can block access to works after the class session. Further distribution of works is a higher hurdle to jump because there is no known technology that can prevent unauthorized copying and distribution, but if the course materials are limited to student and accessible only for the period necessary to meet teaching objectives, in general, institutions have reasonably prevented unauthorized reproduction and distribution.

As technology advances, and as more copyrighted works are available on the market with their own protection controls such as watermarking, we can expect more complete protection. However, it would be prudent for institutions to use technology only to the extent necessary to protect copyrighted works. It is not in the long-term interests of educational institutions to impede on fundamental user rights. Privacy and intellectual freedom would be threatened by technology that tracks everything a faculty or student does just to ensure 100% effectiveness.

Fair Use as an Option

Fair use (Section107) allows that rights of copyright can be used (under certain conditions) without the prior permission of the copyright holder and without paying a fee or signing a license. One can assert fair use when strict application of the law is overly burdensome and actually interferes with the purpose of copyright — to promote learning through the creation and dissemination of new works of science and arts. Fair use is frequently used for classroom purposes such as the distribution of multiple copies of works to students in the classroom.

Fair use is also an effective argument for the use of copyrighted works in the “digital classroom,” and in fact, is the reason that most uses of copyrighted works have been lawful uses, even prior to the TEACH Act. So why use the TEACH exemptions and commit to the law’s requirements when fair use applies?

Arguably, fair use has been effective. Educational institutions that have used fair use have not been sued for copyright infringement. If things are already working well, why rock the boat? Ultimately, administrators, faculty, librarians, computer staff and others will have to decide how to proceed. I can think of a few reasons why it might be in the best interest of education to take advantage of TEACH.

Benefits of TEACH

Choosing TEACH has benefits. Its implementation forces an institution to review copyright policies and create copyright education tools for the educational community. Writing policy does not sound like fun, but reflecting on how the institutional approaches copyright and how it plans to work in the spirit of the law has benefits and certainly beats the alternative of faculty unknowingly violating law or not taking full advantage of user exemptions.

Institutions should
write their own policies, within the mindset of the institution’s goals, rather than rely on packaged copyright materials.

It is also well-advised that institutions write their own policies, within the mindset of the institution’s goals, rather than rely on packaged copyright materials prepared by the content community that are willingly offered as easy solutions to the copyright education problem. It is a reality that the values of copyright holders and aggregators are different than the values of the educational community and our copyright policies should be written from our perspective.

Second, the law is shaped by our own behavior. If TEACH exemptions are widely used, the exemptions will become a more necessary component of the copyright law. When user rights are not exercised, the rationale for having the rights to begin with is questioned. The “use it or lose it” mantra is true.

Third, and sadly true, we cannot expect that fair use will be a viable option in the digital environment. Already, the DMCA has enforced new rules that make it impossible to exercise fair use if digital copyrighted materials are protected by technological measures. Currently, if anyone breaks the code or protection device used to control access to a work, for any reason, he faces civil and criminal liability. Since 1998, when the DMCA became law, the anti-circumvention provision has been used numerous times to sue and convict individuals — some of whom for the most legitimate reasons have created, used or merely talked about anti-circumvention tools. Thus, if we rely solely on fair use for digital education needs, as more materials are protected with anti-copying technology, we will lack the legal authority to make unauthorized uses.

It is not necessary to make an immediate decision on whether or not to use TEACH exemptions. Administrators and faculty have the time to make thoughtful decisions, explore all options, assess their technological capabilities, and build consensus among the members of their educational community. Educational institutions will see what routes other institutions take, and hopefully, a set of best practices will develop and can be modeled. But if you choose to use TEACH exemptions, don’t wait too long. Step up to the plate and establish copyright policy and practices with your institution, the wider educational community, and the future, in mind. —Carrie Russell is the Copyright Specialist for the Amican Library Association Office for Information Technology Policy.


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last modified: May 2003


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