The TEACH Act neither substitutes, nor alters or affects the scope of the “fair use” doctrine.  The Senate Report 107-3131 accompanying the TEACH Act expressly states:

Not only instructional performances and displays,
but also other educational uses of works, such as the provision
of supplementary materials or student downloading of
course materials, will continue to be subject to the fair use
doctrine. Fair use could apply as well to instructional
transmissions not covered by the changes to section 110(2) . . . .

About the TEACH Act

The TEACH Act is an attempt to balance higher education’s use of distance learning while protecting copyright holders from greater chances of infringement because of digital access and distribution.  The TEACH Act supplements the “fair use” exception (see Copyright Education Materials to copyright law.  While the fair use exception employs a balancing test, the TEACH Act provides more specific guidelines to provide an institution a “safe harbor” from copyright infringement. 

Educators who want to include copyrighted material in a course pack or electronic reserve without the copyright holder’s permission should examine the possible application of “fair use,” not the TEACH Act.

The TEACH Act has several goals.  Primarily, the TEACH Act seeks to simulate the face-to-face instruction exception of copyright law in the digital context of distance learning.  Recognizing that education has expanded outside of the traditional classroom and the importance of digital media in distance learning, the TEACH Act seeks to resolve copyright questions.   Second, the TEACH Act broadens the copyright exemption for instructional transmissions to include distance education learning by removing the idea of the physical classroom.  Third, the TEACH Act expands the categories of works that can be performed.  Fourth, it allows for copyrighted works to be stored on a server to be accessed at asynchronous times.  Fifth, it permits institutions to digitize copyrighted works when digitized versions do not exist and the material is not protected by technological enhancements preventing its conversion.  Finally, it clarifies that any temporary or transient copies made incident to digitization do not infringe. 

Instructor Responsibilities

1. Copyrighted material must be provided at the direction of, or under actual supervision of an instructor and the material must be an integral part of the class session.
2. The performance or display must be directly related and of material assistance to the course’s curriculum, i.e., not merely for entertainment purposes.
3. The material’s amount must be analogous to the type that would take place in one live classroom setting, e.g., the use of a short poem, essay or photograph.  Distribution of material that would typically span more than one class session is not allowed, i.e., whole textbooks, course packs, or other material in media.
4. Instructors must provide notice to students that the materials used in connection with the course may be subject to copyright protection.[1]
5. Instructors should use passwords to limit access to those students enrolled in the course.  Access to the electronic course content should end at the conclusion of the course (typically the end of the semester).  UNIT provides support to facilitate these measures.

Preferably, instructors should link to materials already legally available on the Internet, before scanning or creating digital copies.  Instructors should take care to ensure that such links are not “framed” within the instructors Webpage in such a way as to confuse the user about the location or source of the linked material.

When instructors make copyrighted works, in any format, they should include appropriate copyright notices and attribution.

Instructors should instruct students not to make unauthorized copies of course material.  For information on Villanova’s copyright policies instructors should direct students to the Villanova University Intellectual Property Policy.

The TEACH Act re-wrote Section 110(2) and added Section 112(f) to the Copyright Act.  The Section 110(2) amendments expand an instructor’s rights to include the transmission of the performance of entire non-dramatic literary or musical work and reasonable portions of all other performances; transmission of displays of works, including videotapes and films and any dramatic musical work all via digital networks.  Section 112(f) gives entitled institutions the right to make copies of digital works and to digitize portions of analog works, if:

(A) such copies or phonorecords are retained and used solely by the body or institution that made them, and no further copies or phonorecords are reproduced from them, except as authorized under section 110(2); and

(B) such copies or phonorecords are used solely for transmissions authorized under section 110(2).

The full text of the TEACH Act can be found here. 

Additional Resources

For more information on the TEACH Act see:

• The American Library Association’s description of the TEACH Act’s legislative history and Kenneth Crew’s article, “New Copyright Law for Distance Learning Education: The Meaning and Importance of the TEACH Act.”
• Part of the University of Texas’s Copyright Crash Course describing the TEACH Act and its implications as well as an institutional checklist for when an institution is ready to use the TEACH Act.
• North Carolina State University’s TEACH Toolkit written by Peggy Hoon (2002)