COPYRIGHT:

The Implications and Impact of the TEACH Act

Introduction

As the world of distance education evolves, more and more issues surface regarding the usability of materials and resources. Educators must keep up-to-date with current legislation that impacts how they teach courses via a distance. Not only is it important to consider legal implications, but also ethical issues must be addressed.

An explanation of copyright issues and an overview of the Teach Act will be presented in this paper. To allow institutions and educators to determine implementation readiness, a checklist of criteria will be provided.

History of Copyright

The history of the American copyright law originated with the introduction of the printing press to England in the late fifteenth century. The Licensing Act of 1662 granted the Stationer’s Company, a group of printers with the authority to censor publications, a near monopoly on publishing in England. In 1710 Parliament enacted the Statue of Anne, which established the principles of author’s ownership of copyright and fourteen years protection of copyrighted works, renewable for fourteen more years if the author was alive upon expiration. Since the Statue of Anne almost three hundred years ago, U.S. law has been revised to broaden the scope of copyright, to change the term of copyright protection, and to address new technologies.

In 1787 the U.S. Constitution stated “the Congress shall have power. . .to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Congress implemented the copyright provision of the U.S. Constitution in 1790. It granted American authors the right to print, re-print, or publish their work for a period of fourteen years and to renew for another fourteen. It was meant to provide an incentive for authors, artists, and scientists to create original works by providing them a monopoly.

Major revisions to the act were implemented in 1831, 1870, 1909, and 1976.

In 1831 the term of protected copyright materials was extended to twenty-eight years, with a possibility of a fourteen-year extension. The extension applied both to future works and those currently under copyright protection. In 1870 the administration of copyright registrations was moved from the individual district courts to the Library of Congress Copyright Office. A major revision of the U.S. Copyright Act was completed in 1909. The bill broadened the scope of categories protected to include all works of authorship, and extended the term of protection to twenty-eight years with a possible renewal of twenty-eight. In 1976 a major revision was undertaken for two reasons. First, technological developments and their impact on what might be copyrighted, how works might be copied, and what constituted infringement needed to be addressed. Second, it was felt that the statute needed to be amended to bring the U.S. into accordance with International copyright law, practices, and policies.

In 1992 Congress passed an amendment making copyright renewal automatic. President Clinton signed the Digital Millenium Copyright Act (DMCA) into law on October 28, 1998.

In 1998, a new law was enacted making it illegal to falsify, alter or remove any copyright management information including any or all of the following:

Title and other information identifying the work

Copyright notice
Author’s name
Copyright Owner’s name
Performer of the work’s name
Name of writer, director, performer who is credited in an audiovisual work
Terms and conditions for use of the work
Identifying numbers or symbols referring to such information or links to such information.

On November 2^nd, 2002, the “Technology, Education and Copyright Harmonization Act”, the TEACH Act, was signed into law by President Bush. Long anticipated by educators and librarians, TEACH redefined 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.

Copyright Used in Education

Much of the material used in educational programs, both traditional and distance education, is protected under copyright law. Copyright protection vests automatically in nearly all works that are “original works of authorship” and “fixed in any tangible medium of expression”. Therefore, copyright law protects most writings, images, artworks, videotapes, musical works, sound recordings, motion pictures, computer programs, and other works. This applies even if there is no form of copyright notice and the work is not registered with the U.S. Copyright Office. Some works are considered “public domain” and do not have copyright protection, such as works of the U.S. government and works with expired copyrights. Copyrights today usually last through the life of the author, plus seventy years.

When authors use any of these works in teaching, they are using copyright-protected materials. Included in the rights of copyright owners are rights to make copies and rights to make public performances and public displays of the works. A group of students may constitute “public” under the law.

Therefore, educators may be violating the owner’s rights whenever they copy materials as handouts, upload works to websites, “display” slides or other still images, or “perform” music, videos, and other works. In the traditional face-to-face classroom setting, the application of “fair use” to making copies has been long debated because the Copyright Act of 1976 included a provision allowing “performances” and “displays” in the face-to-face setting. The rules for distance education are significantly different because materials are uploaded to websites, transmitted anywhere in the world, and are easily downloaded, altered or further transmitted by other users, posing threats to the interests of copyright owners.

Fair Use

Fair use is a privilege that permits someone other that the copyright owner to reproduce, distribute, adapt, perform, or display a work. Fair use requires the application of four factors to determine whether a use is fair. First, the purpose and character of the use is likely to favor the use when it is for instruction offered by nonprofit education. Second, the nature of the copyright work examines the work itself as it is used. It is unclear whether works that are produced for the educational market should be available for use by nonprofit educational courses. Third, the amount and substantiality of the portion used in comparison to the work as a whole indicates that a small portion of a work that is used in distance education may be permissible. And, fourth, the market effect relates to the effect on the potential market for or value of the work. If an institution purchases or lawfully obtains a copy of a work that it plans to use in a distance learning course, there should be no adverse impact on the market.

It is important to remember that there are no absolute measures for these factors. If a dispute arises, only a federal court may rule on whether or not a particular use is fair. It is incorrect to assume that using any copyrighted work for teaching or research is fair use.

The TEACH Act

As distance education became more popular, the impact of severe limitations on what works could be performed via a distance were realized. 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. In March 2001, Senator Orrin Hatch from Utah introduced a bill closely tracking the Copyright Office’s recommendations. His goal was to enhance high-tech educational tools for rural areas thereby bridging the gap between students and learning opportunities. He stated, “Online education will only thrive if teachers and students have affordable and convenient access to the highest quality educational materials.” It took almost two years, but the TEACH Act finally became law in late 2002.

Benefits of the TEACH Act

The benefits of the Teach Act far outweigh any disadvantages that may arise as a result of this legislation. The following are among the benefits of the TEACH Act:

Disabled students who have difficulty getting to classrooms need not be left behind.
Men and women in military service or other professions where they must travel frequently are only a modem away from their classes.
Single mothers or fathers juggling careers and child-rearing can complete schooling at times and places that fit their own busy schedules, even at night at home while the kids are asleep.
Seniors can be life-long learners, scanning the online horizons, if they choose, in the comfort and safety of their own homes.

Distance Education and Copyright

The TEACH Act addresses many copyright issues concerning distance education. The TEACH Act extends earlier permissions granted to educators, but also specifies how far educational institutions must go in preventing copyright infringement. Educators must work at an accredited institution that is in compliance with the new requirements to be protected under the TEACH Act.

The TEACH Act only modifies previous copyright law in certain instances. Specifically, the TEACH Act:

Permits the display and performance of nearly all types of works that are related to the curriculum, regardless of the medium, as long as they are shown during class (not materials an instructor may want students to study, read, listen to, or watch on their own time outside of class)
Removes the previous restriction that content must be transmitted to a classroom, so now there is no restriction on a recipient’s location
Permits the retention of content and student access for the length of the “class session”
Permits the copying and storage of materials when necessary for digital transmission to students
Permits the digitization of analog works if they are to be used for a limited time and are not already available through another means to the institution

Requirements Established Under the TEACH Act

According to Catherine Innes, the former Copyright Information Officer at the University of Washington, to be in compliance with the TEACH Act, each institution must:

§ “Institute policies regarding copyright” (e.g. establish standards for employees and students)

§ Provide information materials about copyright to students, faculty, and staff

§ Provide notice to students when “materials…may be subject to copyright protection

§ Limit the transmission of educational content over a secure system accessible only by enrolled students

§ Prevent the storage of materials where they are accessible to anyone besides enrolled students

§ Prevent the retention of materials by students for periods longer than the “class session”

§ Prevent the dissemination of materials

Additionally, individual instructors are obligated to:

§ Supervise the display or performance of copyrighted materials

§ Ensure that materials used are an integral part of “mediated instructional activities”

§ Ensure that materials used are not “typically purchased or acquired by the students” (i.e. textbooks)

Copyright Penalties

Anyone who infringes upon the copyright law can be held accountable. They could be subject to penalties ranging from $500 to $20,000 per violation. In addition, he/she could be liable for all costs and attorney’s fees. Intentional infringement could include statutory damages up to $100,000 and the violator may be subject to criminal charges.

If there is any alteration in copyright management information, the first time violators could face statutory damages ranging from $200 to $2,500 per violation. These amounts could be tripled for subsequent violations.

Checklist For an Institution Before Using the TEACH Act

How do you know if you are ready to implement the TEACH Act within your institution? This checklist can be found at the University of Texas website.

My institution is a nonprofit accredited educational institution or a governmental agency
It has a policy on the use of copyrighted materials
It provides accurate information to faculty, students and staff about copyright
Its systems will not interfere with technological controls within the materials I want to use
The materials I want to use are specifically for students in my class
Only those students will have access to the materials
The materials will be provided at my direction during the relevant lesson
The materials are directly related and of material assistance to my teaching content
My class is part of the regular offerings of my institution
I will include a notice that the materials are protected by copyright
I will use technology that reasonably limits the students' ability to retain or further distribute the materials
I will make the materials available to the students only for a period of time that is relevant to the context of a class session
I will store the materials on a secure server and transmit them only as permitted by this law
I will not make any copies other than the one I need to make the transmission
The materials are of the proper type and amount the law authorizes:

· Reasonable and limited parts of a dramatic literary, musical, or audiovisual works

· Displays of other works, such as images, in amounts similar to typical displays in face-to-face teaching

The materials are not among those the law specifically excludes from its coverage:

· Materials specifically marketed for classroom use for digital distance education

· Copies I know or should know are illegal

· Textbooks, coursepacks, electronic reserves and similar materials typically purchased individually by the students for independent review outside the classroom or class session

If I am using an analog original, I checked before digitizing it to be sure:

· I copied only the amount that I am authorized to transmit

· There is no digital copy of the work available except with technological protections that prevent my using it for the class in the way the statute authorizes

Authors’ Views

We have the opportunity to be educators at a time when Distance Education is beginning to flourish. As educators we want to embrace Distance Education whether it is through teaching courses, taking courses, or inspiring others to experience it for themselves. Institutions have an obligation to themselves, their faculty and staff, and their students to provide guidelines and policy in support of the TEACH Act. This legislation provides opportunities for a more diverse population to experience distance education. However, faculty are not typically willing to participate in developing distance courses unless the degree of risk is minimal and they see the benefit of the process. Guidelines provided by the TEACH Act minimize this risk by clearly identifying the legal issues of creating and delivering distance courses. It takes a great deal of time and effort in creating distance courses. Since this material is readily available on the web, faculty want assurances that THEIR work will be protected. They want to know who owns the work, the individual or the institution. This legislation is really advantageous to all academic institutions. There is a new market for education with non-traditional students. Many want to further their education, but are restricted by family, work, and geographical location. Distance Education is their only means of achieving their goals.
The following excerpt from the Brookings Institute in Washington, D.C. sums up the ethical responsibilities associated with computer use.

The Ten Commandments of Computer Ethics

Created by the Computer Ethics Institute

Thou shalt not use a computer to harm other people.
Thou shalt not interfere with other people’s computer work.
Thou shalt not snoop around in other people’s computer files.
Thou shalt not use a computer to steal.
Thou shalt not use a computer to bear false witness.
Thou shalt not copy or use proprietary.
Thou shalt not use other people’s computer resources without authorization or proper compensation.
Thou shalt not appropriate other people’s intellectual output.
Thou shalt think about the social consequences of the program you are writing or the system your are designing.
Thou shalt always use a computer in ways that insure consideration and respect for your fellow humans.

RESOURCES

http://depts.washington.edu/uwcopy/information/copyrightlaw/6.shtml

http://depts.washington.edu/uwcopy/information/copyrightlaw/14.shtml

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter0/0-a.html

http://www.brook.edu/its/cei/cei_hp.htm

http://www.law.cornell.edu/topics/copyright.html

http://www4.law.cornell.edu/uscode/17/index.html

http://www.senate.gov/~hatch/index.cfm?FuseAction=Topics.Detail&PressRelease_id=188305&Month=11&Year=2002

http://www.usd.edu/ttd/teach_act/teachact.ppt

http://www.utsystem.edu/ogc/intellectualproperty/teachact.htm