1. 1 Understanding Applications of the TEACH Act: Distance Education and the New Copyright Law Institute for Computer Policy and Law Educause & Cornell University Ithaca, New York June 30, 2005 Kenneth D. Crews, J.D., Ph.D. Samuel R. Rosen II Professor Indiana University School of Law-Indianapolis Director, Copyright Management Center at IUPUI

2. 2 Why the TEACH Act??? l Frequent Use of Copyright Materials in Distance Ed. –Text, Images, Music, Recordings l Almost Everything is Protected by Copyright –Original Works that are “Fixed” –Long Duration of Protection l Almost all uses Carry Risks of Infringement –Cutting, Pasting, Uploading, Transmitting l Importance of Copyrighted Works in Education

3. 3 Origin of the TEACH Act l Failure of Previous Section 110(2) –Enacted in 1976; Largely drafted in 1965 –Based on TV Technology –Limited Scope and Uses of Materials l Uncertainty of Fair Use, Section 107 l Difficulty of Securing Permissions l Initiated by Congress in 1998 l Copyright Office Report in 1999 l Enacted by Congress in 2002

4. 4 Exceptions to the Rights of Copyright Owners l Section 107: Fair Use l Section 108: Library Copying l Section 109: First-Sale Doctrine l Section 110: Displays and Performances l Section 114: Transmissions of Sound Recordings l Section 115: Compulsory Licenses/Recordings l Section 120: Architectural Works l Section 121: Persons with Disabilities

5. 5 Contemplating Fair Use l Section 107: Fair Use –Purpose of the Use –Education vs. Commercial –Transformative –Nature of the Work Used –Amount Used –Effect of the Use on Market or Value

6. 6 Uses in Classrooms & Distance Ed. l Section 110(1) –Performances and Displays –Face-to-Face Teaching l Section 110(2) (“The TEACH Act”) –Distance Learning –Performances and Displays –Some Reproduction & Distribution

7. 7 The TEACH Act: 3 Roles to Play l Role of Instructors l Role of Institution l Role of Technologists l Not Forgotten: Role of Librarians

8. 8 Getting Ready for the TEACH Act l Copyright Management Center –Website: www.copyright.iupui.edu www.copyright.iupui.edu l Summaries of the Law l Strategies for Compliance l “Checklist for the TEACH Act” –Numerous Requirements –Must comply With Them All!

9. 9 The TEACH Act: Content Limits l Performances of nondramatic literary works l Performances of nondramatic musical works l Performances of any other work, including dramatic works and audiovisual works, but only in “reasonable and limited portions” l Displays of any work “in an amount comparable to that which is typically displayed in the course of a live classroom session.”

10. 10 The TEACH Act: Prohibited Materials l Works that are marketed “primarily for performance or display as part of mediated instructional activities transmitted via digital networks” l Performances or displays given by means of copies “not lawfully made and acquired” under the U.S. Copyright Act, if the educational institution “knew or had reason to believe” that they were not lawfully made and acquired

11. 11 The TEACH Act: Policy Requirements l Accredited Nonprofit Educat’l Institution l Development of Copyright Policies l Copyright “Informational Materials” l Notice to Students about Copyright l Access Limited “Solely” to Enrolled Students

12. 12 The TEACH Act: Technology Requirements l Technological Restrictions on Access only for Enrolled Students l Technological Controls on Retention by Students longer than “Class Session” l Technological Controls on Further Transmission l No Interference with Technological Control Measures embedded on Works

13. 13 The TEACH Act: More! l The performance or display “is made by, at the direction of, or under the actual supervision of an instructor” l The materials are transmitted “as an integral part of a class session offered as a regular part of the systematic, mediated instructional activities” of the educational institution l The copyrighted materials are “directly related and of material assistance to the teaching content of the transmission”

14. 14 A “TEACH Act Experiment” l Selection of Short Video Clip –Portion of longer tape –Original purchased from producer l Necessary Intangibles –Uncomfortable with Fair Use –Willing Professor –Necessary Support Team

15. 15 Strategic Implementation l Step 1: Assemble the Team –Technological Expertise –Well-Informed Faculty –Policymaking Authority l Step 2: Find the Right Course –Who can use the benefits? –Who needs the “relative certainty”? –Who is ready to cooperate?

16. 16 A “TEACH Act Experiment” l The “Easy” Requirements –Nonprofit educational institution –Copyright Policies –Copyright Information Resources l The “Moderate” Requirements –Limits on Types & Quantities of Materials –AV Works: “Reasonable & Limited Portions” –Access Limited to Enrolled Students

17. 17 A “TEACH Act Experiment” l The “Tough” Requirements –Technological Controls that “Reasonably” Prevent Downloading –Technological Controls that “Reasonably” Prevent Further Dissemination l What is “Control”? l What is “Reasonable”?

18. 18 A “TEACH Act Experiment” l Alternatives for Video Delivery –Encrypted Files Delivered to Students –Layers of Password Protections –Limited IP Address Authentication –Real-Time Delivery (Streaming) –Non-Durable URLs l Practical Problems of Each l Nothing “Strictly Complies” with the Law l Conclusion: Streaming/Password Layers

19. 19 Lessons from the Experiment l You will Never be 100% Certain l Not Every Institution can use the TEACH Act l No One can use it Alone –You Need to Assemble your Team l Compliance is probably Not Practical for Single Items l The TEACH Act’s rigors can often Outweigh the Benefits

20. 20 The Most Important Lessons l Stay Flexible! –Statutory Interpretations –Ever-Changing Needs –New Technological Possibilities –Fair Use, Fair Use, Fair Use –Licensing, Licensing, Licensing l Get Involved! –With Your Local Decisions –With the Shaping of New Law

21. 21 Click to Beginning! Click to Beginning! For More Information: www.copyright.iupui.edu Copyright Management Center Indiana University Purdue University Indianapolis Understanding Applications of the TEACH Act: Distance Education and the New Copyright Law