The TEACH Act (2002)

The Technology, Education and Copyright Harmonization Act, or the TEACH Act of 2002 introduced new rights for teachers of online courses to make materials more accessible. This hasn’t been discussed much in K-12 as before now distance learning was limited in our schools. With more instruction moving online, however, it is critical that everyone involved understands the rights provided under the TEACH Act.

In face-to-face instruction, some copyright questions can be answered using the educational exemptions provided in section 110(1) of copyright law covering “performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution.” But once instruction moves online it is no longer “face-to-face” and so this section failed to protect educational usage. New language was needed as distance learning became more common in universities.

When instruction moves online, copyright permissions are granted by section 110(2) which broadly covers “performance or display as part of mediated instructional activities transmitted via digital networks.” Let’s explore the language in this section to better understand what is intended by these convoluted words.

• “Mediated instructional activities” – This refers to a teacher, or student as directed by a teacher in an assignment, using materials for teaching and learning as they might in a face-to-face classroom.
• “Transmitted via digital networks” – This means that the material and the interaction are taking place online, not face-to-face. The wording means that online learning for a flipped classroom would be covered here, but any in-classroom usage would fall under section 110(1) for face-to-face instruction.

There are, of course, other restrictions, but this establishes a starting point for our understanding and determinations of applicability. If the instruction is face-to-face, section 110(1) applies, but if instruction is online then it falls under section 110(2). This is important because while 110(2) provides generous rights for online instruction, those rights pale in comparison to the much broader usage rights for face-to-face instruction provided by 110(1). For example, a teacher in face-to-face instruction can read aloud (perform) an entire book in front of a class. However, in an online learning situation under section 110(2), that teacher would be limited to only using a “reasonable and limited portion” of the book. Maybe.

The teacher is scope limited by section 110(2), but only if the teacher elects to validate usage under the TEACH Act. Instead, the teacher could make the case that the intended performance of reading aloud a book for a class was allowed under fair use (quite likely if it is curriculum aligned). In other words, the TEACH Act may apply, but does not have to apply to online instruction. Fair use may provide broader permissions of use and may be a better route to explore. More on fair use in the next lesson. For now, let’s return to the TEACH Act and section 110(2) to more fully explore the limitations of use.

There are many limitations and requirements coupled with the rights provided under section 110(2) and the TEACH Act. Checklists for determining applicability of the TEACH Act include up to 22 items for consideration as will be seen in the next topic! To begin to understand the limitations, it is helpful to break them down into the four sections in which they are addressed as part of section 110(2).

(A) For the use to be valid under the TEACH Act, it must be a regular part of the online instruction by a teacher or at the teacher’s direction (students or guest speakers) and that teacher must be teaching a course at an actual school. So you have to be a teacher teaching a registered course at a school.

(B) A valid use must be directly related to what the teacher is teaching and has to be of “material assistance” to the learning. So no watching movies just for fun or as a reward under this act, it has to be content related.

(C) Any use has to use proper technology and security as much as possible like (i) restricting access to just students of the class or (ii) other school personnel like the librarian or principal that might need to see the class.

(D) The school where you are trying to use the TEACH Act also has to do some things like (i) have a good copyright policy, and (ii) because this is online the school has to (I) use other technology security measures to stop anyone from (aa) keeping or accessing the content after they finish the class or (bb) sharing the material from the class with other people not in the class. The school also has to (II) not try to bypass restrictions that copyright holders put on their stuff to protect it from copying or sharing. So in other words, the school has to be good and try to restrict access as much as possible and not try to mess with things that the content providers do to restrict access.

If you follow all of those limitations, then the TEACH Act does provide a couple of allowances. First, and most obvious, is that you can use copyrighted material in your online course. But a second allowance is found in another section of copyright law that potentially makes dealing with all of these limitations worth the hassle.

Section 112(f) of copyright law allows schools that are using the TEACH Act to create digital copies of analog works for the purpose of sharing them in an online course. There are, of course, more limitations, so let’s get those our of the way first. The copy of the analog work can only be made if (A) the copy is only used by the school that made it and they don’t make any other copies and (B) if the use is for an allowed online course use as defined above. The permission for doing this is granted because of the limitations established in (D) above. If you can’t mess with the restrictions that owners put on their digital books to prevent copying and sharing, then how can you share a reasonable portion of that book in your online course?

The answer is that sub-section 112(f)(2) says you can make a digital copy (scan) of a reasonable portion of print version of the book as long as either (A) you can’t get a digital copy or (B) you can’t get a digital version that isn’t locked down. Oh, and as always with copyright, the copy that you are scanning from has to be a legal copy that you bought or borrowed. And you cannot make copies or use items under the TEACH Act like textbooks or consumables that students would otherwise be expected to purchase.

In order to determine if an intended usage is allowed under the TEACH Act, you need to consider each of the limitations described in the previous topic. As you might have noticed, there were quite a few different points to review. The University of Texas Libraries have created a helpful checklist that looks at each limitation.