Copyright: Face-to-Face vs. Distance Education

In addition to Fair Use, title 17, section 110(1), of the United States Code permits the display and performance of others’ works in the face-to-face classroom. An instructor may show or perform any work related to the course curriculum in a face-to-face setting regardless of the medium (including music, images and movies). For example, an instructor can show an entire film in class without obtaining permission. However, the instructor must use a lawfully acquired copy of the work.

This exception does not include the right to make or distribute copies or to make derivative works based on the works that are performed or copied.

The Technology, Education and Copyright Harmonization Act (TEACH Act) became law in 2002 (revising 17 U.S.C. section 110(2)). When applicable, it expands the scope of an instructor’s right to perform and display works for digital distance education. Prior to the passing of the TEACH Act, there were severe limitations on what could be performed in a distance education course. Although it makes the rights closer to what is available in the traditional face-to-face teaching environment, there is still a gap between the two. The TEACH ACT only applies to in-class performances and displays. Therefore, digital delivery of supplemental reading materials and other electronic resources used or made available to students outside of the digital classroom are not covered. In some cases, it may be easier or more applicable to rely on the Fair Use factors when dealing with electronic teaching tools.

For in-class performances and displays in a distance education course, the following rules and restrictions apply under the TEACH Act:

• The material must be used in a course offered by an accredited nonprofit educational institution.
• The performance or display cannot be made by means of a copy that was made or acquired unlawfully.
• The Act permits the performance of non-dramatic literary and musical works or reasonable and limited portions of any other works. Therefore, audio-visual and dramatic works (such as movies) can only be shown as 'clips' under the Teach Act.
• The performance or display must be (1) directly related and of material assistance to the teaching content of the transmission and (2) an integral part of a class session offered as a regular part of the systematic mediated instructional activities of the institution.
• The transmitting institution must (1) institute policies regarding copyright, (2) provide faculty, students and relevant staff with informational materials that accurately describe and promote compliance with copyright law, and (3) provide notice to students that materials used in connection with the course may be subject to copyright protection.
• In the case of digital transmissions, the transmitting institution (1) must employ technological measures that reasonably prevent recipients from retaining the work in accessible form for longer than the class session and further disseminating the work to others without authorization, and (2) must not interfere with technological measures used by copyright owners to prevent such retention or unauthorized further dissemination.
• The Act excludes the performance and display of works produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks