Unit 7: Distance Education and TEACH Act

Prior to this unit I had not even realized that distance teaching would be subject to more rigorous copyright restrictions than classroom teaching. I suppose broadcast or digital material is treated as more sensitive than hard copy material.

An article by Tomas Lipinksi was assigned for this unit. The TEACH Act is difficult to understand, and the article seemed...vague, so I had to refer to some more basic sources to get a grip on what we were talking about.

I referred to the Copyright Clearance Center Guide to the TEACH Act to get an overview of the TEACH Act.

TEACH is an acronym for "Technology, Education and Copyright Harmonization. Harmonization? The Merriam-Webster dictionary does not even consider "Harmonization" to be a word. I looked in BusinessDictionary.com, which defined Harmonization like this:

Adjustment of differences and inconsistencies among different measurements, methods, procedures, schedules, specifications, or systems to make them uniform or mutually compatible.

Which makes more sense to me...the TEACH Act is intended to make technology, education and copyright mutually compatible. OK.

Other facts about TEACH:

• Modifies previous Copyright Law regulations (pre-digital) about distance teaching.
• Applies to accredited, non-profit educational institutions (and some Government institutions).
• Materials displayed most be for educational purposes directly related to class, limited to students in class, technologically protected, and be only a "reasonable and limited portion" of the total work.
• Does not apply to electronic course reserves, digital textbooks, document delivery
  

Dr. Lipinski's article discusses the TEACH Act in some legal detail.
The TEACH Act, according to Lipinski, is a very complex law legislated to update the pre-TEACH law 17 U.S.C. 110 (2), which was restrictive. It allowed unlimited performance of non-dramatic works, and unlimited display of any other category of work. It was written in the era of the mid-1970's, and the legislative language was meant to apply to analog transmissions (like television) to a physical classroom. A goal of the TEACH Act was to remove the concept of broadcasting to a physical classroom, and provide for use of digital materials distance education beyond the classroom. While TEACH Act expanded the rights to use digital materials, it also limited amount. Pre-TEACH law allowed for unlimited display, but TEACH Act limited to display to what would normally be shown in a live classroom session.
Lipinski specifically address streaming films, saying:

It can further be argued that use of the entire video can never be used under TEACH. If Congress had desired educators to be able under section 11o(2) to be able to use the entire video no such conditional language would have been included...

The second reading for the unit, the ARL/ALA Issue Brief, "Streaming of Films for Educational Purposes," argues in the other direction. The authors suggest that Fair Use is a better guideline to follow than the TEACH Act when it comes to deciding how much of a film to stream. However, it seemed to me that the overall tone of the brief was hopeful rather than decisive. Like...you will PROBABLY be ok if you decide to stream a full film. It is LIKELY that the courts would decide in your favor if it came down to it. There is a definite risk implied in streaming a full film. It is interesting that Fair Use is a separate guideline from the TEACH Act, and that authors prefer using the Fair Use guidelines over the TEACH Act.

Mr. Lipinski came and gave a (well-attended) lecture to our class. He addressed the full-length streaming issue further, saying that it is very unclear how much a video you can show--there is no set limit. You could, for example, show everything but the credits, and say you didn't show the whole film.

He spent some time discussing "ephemeral recordings" which has a lovely sound to me, like tapes of ghosts talking--which is not what it is. The U.S. Copyright office defines ephemeral records as

Ephemeral Recording is a phonorecord created solely for the purpose of facilitating a transmission of a public performance of a sound recording under the limitations on exclusive rights specified by 17 U.S.C. 114(d)(1)(C)(iv) or under a statutory license in accordance with 17 U.S.C. 114(f), and subject to the limitations specified in 17 U.S.C. 112(e).

So, that is kind of old school. Now ephemeral recordings seem to be more defined as a copy made for purposes of electronic distribution. The TEACH Act updated ephemeral recordings guidelines so that instructors could make digital copies of teaching materials, if they were following TEACH guidelines (limited portion, time-limited, etc).
Lipinski emphasized that intention is very important in copyright law. Being able to use the Good Faith argument prevents you from having to pay damages. On the other extreme, willful copyright infringement brings the highest penalties. Conduct limits does not limit liability, but does limit damages.

My take home message is that the TEACH Act is classic copyright law...confusing, hard to understand, open to interpretation.

Additional TEACH Resources:

Penn State
North Carolina State (Tool kit--Checklist!)

References:

Tomas A. Lipinski (2003) “The Climate Of Distance Education In The 21st Century: Understanding And Surviving The Changes Brought By The TEACH (Technology, Education, And Copyright Harmonization) Act Of 2002” Journal of Academic Librarianship 362, (362-374).

ARL Issue Brief: Streaming of Films For Educational Purposes
(http://www.arl.org/bm~doc/ibstreamingfilms_021810pdf.pdf)