COPYCENSE

A. INTRODUCTION

This edition of CommuniK.™ features the second part of a series about copyright law exceptions that are available to libraries, schools, and archives. The article discusses Section 110 of the 1976 Copyright Act, which allows schools to perform or display copyrighted works under certain circumstances without having to receive the owner’s permission.

Section 110 has 10 subsections, but only the first two subsections apply to educational use of copyrighted materials. This article analyzes those first two provisions: Section 110(1), which generally allows teachers to use copyrighted works in the classroom without first having to get the owner’s permission; and Section 110(2), which generally allows teachers to use copyrighted works in a virtual classroom without first having to get the owner’s permission.

As copyright law goes, Section 110(1) is relatively simple to read. But Section 110(2), which also is known as the TEACH Act, is very complicated. The article parses both sections, and concludes by analyzing both sections within the context of the limitations risk analysis theory I introduced in the first part of this series. Finally, I speculate whether the TEACH Act has any practical value given its complexity.

Portions of this article originally appeared in the January/February 2005 and March/April 2005 editions of Online magazine. This version has been substantially updated and includes a new resources section.

B. IN-CLASS PERFORMANCES & DISPLAYS UNDER SECTION 110(1)

Section 110(1) generally allows teachers and students to publicly display and publicly perform copyrighted works when such displays and performances are for educational purposes. Specifically, Section 110(1) says,

Notwithstanding the provisions of section 106, the following are not infringements of copyright:

(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made …

Simply said, Section 110 allows teachers and schools to ignore some of a copyright owner’s rights (which are outlined in Section 106) under certain circumstances. Those circumstances can be summarized in four basic points.

1. Performances & Displays, Not Copies

Section 110(1) contains some important qualifications. First, the statute concerns only “performances” and “displays” of copyrighted works made by teachers or students. Both terms are defined in Section 101. Section 101 says that a work is performed when it is “recite[d], render[ed], dance[d], or act[ed], either directly or by means of any device.” Section 101 says that a work is displayed when a copy of it is shown, either directly or through the aid of a device.

Section 106 gives copyright owners six exclusive rights, including the rights to publicly perform and publicly display a protected work. Section 106 also gives an owner the exclusive right to reproduce, or copy, a protected work. But Section 110(1) does not act as an exception to the owner’s reproduction right; in other words, educators cannot use Section 110(1) as the legal basis for copying educational materials. Other exceptions (like fair use) may allow educators to make copies, but Section 110(1) does not.

This concept is important enough that it bears repeating: the permission to make copies of protected material for educational purposes is not explicitly granted by Section 110(1) (or Section 110(2), for that matter). That permission may be covered, however, under a separate exception, such as fair use.

2. “Non-Profit Educational Institutions”

The second important qualification in Section 110(1) is that it is available only to “non-profit educational institutions.” “Non-profit educational institutions” is a fancy way to say “school” in the traditional sense of the term. Associations and foundations likely cannot use Section 110(1) as a copyright exception, and institutions that are on the periphery of the educational and training spectrum (i.e. language schools, dance schools) likewise are barred from using Section 110(1) as the basis for displaying or performing protected works for educational purposes.

Given the rise of for-profit schools and educational centers such as the University of Phoenix and Sylvan Learning Centers, one may ask whether those institutions can use Section 110(1) as a copyright exception. The simplest answer is “probably not.” The most prominent distinction between these institutions and a school like Syracuse University is that the former pair are for-profit institutions, while Syracuse is a non-profit institution.

A quicker, somewhat reliable way to determine whether an institution is eligible to use Section 110 as a copyright limitation is to determine whether or not the institution uses the .edu domain. Syracuse University, for example, can use the .edu domain, while the University of Phoenix and Sylvan cannot. According to EDUCAUSE, the sole registrar for the .edu domain, use of that domain is limited to “postsecondary institutions that are institutionally accredited … by agencies on the U.S. Department of Education’s list of Nationally Recognized Accrediting Agencies.” Institutions that qualify for the .edu domain tend to be non-profit schools; by extension, such non-profit schools qualify to use Section 110(1) as a copyright exception.

(The .edu test is not conclusive, though: Strayer University is owned and operated by a for-profit company called Strayer Education, Inc., which trades its shares on the NASDAQ exchange. Yet Strayer qualifies for the .edu domain because it is accredited by the Middle States Commission on Higher Education. If you have any doubt as to whether your organization passes the non-profit test in Section 110, do a little investigating.)

3. In-Class Performances & Displays

Educators can use Section 110(1) as a copyright limitation only when the performance or display of the work occurs within the context of in-class, “face-to-face” teaching. This means that showing a videotape inside the class is fine, but piping into the classroom a feed of a broadcast that originates outside the classroom may not be. Further, the display or performance must occur inside a classroom or similar area devoted to classroom teaching. The performance or display cannot occur in a public venue that is not intended for classroom instruction, or an auditorium where people outside the class are reasonably expected to convene.

4. No Bootlegs

Finally, there is the “bootleg ban”: educators cannot use Section 110(1) as a copyright exception if the work that is being performed or displayed is a “bootleg” (or otherwise illegal) copy of an image, motion picture, or other audiovisual work, and the person who performs or displays the work reasonably knew that the work was illegally made.

All in all, Section 110(1) is relatively straightforward. But its online counterpart — the TEACH Act — is much more difficult to parse.

C. ONLINE PERFORMANCES & DISPLAYS UNDER SECTION 110(2): THE TEACH ACT

1. Background of the TEACH Act

President Bush signed The Technology, Education and Copyright Harmonization Act — commonly known as the TEACH Act — into law in November 2002. According to Nimmer on Copyright, Congress said the Act “[a]llows students and teachers to benefit from deployment in education of advanced digital transmission technologies like the Internet, while introducing safeguards to limit the additional risks to copyright owners that are inherent in exploiting works in a digital format.”

One may ask why Congress felt the need to pass the TEACH Act since fair use (Section 107) likely serves as a reasonable educational copyright exception. (The relevant portion of Section 107 states “[t]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords … for purposes such as … teaching (including multiple copies for classroom use), scholarship, or research is not an infringement of copyright.”)

Congress, however, set the stage for the TEACH Act when it discussed the Digital Millennium Copyright Act four years earlier. At that time, Congress (with the help of the entertainment and content industries) established the premise that new technology necessitates new law:

In the past, distance learning programs existed primarily for students who, because of their special circumstances, could not be taught in a traditional classroom. Section 110(2) of the copyright law contains an exemption that accommodates this type of activity. The current exemption is designed to cover instructional broadcasting, and allows the use of only certain categories of works. Future distance education, however, may involve a wider range of activities, including the use of interactive digital transmissions, and be designed for a broader audience of students working from personal computers in their own homes. The Committee believes that the scope of the distance education exemption should be reexamined in light of the range of educational activities made possible by digital technologies.

Senate Report 105-190 (May 11, 1998), p. 23.

According to an ALA report written by Kenneth D. Crews, the TEACH Act “redefines 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.” Crews adds that the TEACH Act offers several improvements over previous versions of Section 110(2).

But more than three years after its passage, some educators wonder whether the TEACH Act really is an improvement over past law. Due to intense lobbying by Big Content, the Act is poorly written and incredibly complex. Addtionally, relevant portions of the Act are sprinkled across more than one statute: most of the TEACH Act is codified in the copyright law at Section 110(2), but other parts of Section 110 relate to the TEACH Act. Further, the digitization provisions of the TEACH Act are not in Section 110 at all; instead, they are located in Section 112(f).

The TEACH Act’s complexity leads one to ask an important question: is using the TEACH Act worth the time it takes to interpret it? Interpretation and compliance require intellectual, and sometimes financial, resources that a school may choose to avoid. This compliance-resources tradeoff relates to limitations risk analysis, and I will address the connection between these two concepts at the conclusion of this piece.

Right now, though, I will attempt to clarify the TEACH Act by breaking down it Act into five major areas:

• an overview of the Act;
• the conditions and qualifications that apply to the Act;
• the Act’s limited liability provisions;
• the Act’s exceptions; and
• its digitization provisions.

I will use “TEACH Act” and “Section 110(2)” synonymously.

2. Overview & Scope of the TEACH Act

Essentially, the TEACH Act says allows teachers to perform or display certain types of copyrighted works within limited contexts of online education. Specifically, the relevant portions of Section 110(2) allow an authorized institution to perform or display copyrighted works to authorized recipients in the following ways:

• Perform a non-dramatic literary work;
• Perform a non-dramatic musical work;
• Perform reasonable and limited portions of other types of works; and
• Display a work in an amount similar to what would be shown if the displayed occurred in a classroom setting.

I’ll give an example: playing an Elton John song or a Tchaikovsky symphony for an online class may be permissible under Section 110(2), so long as the remainder of the Act’s requirements are met. Further, placing a portion of an audiobook of someone reading a passage from Moby Dick would be fine, as long as the requirements are met. (I’ll address those requirements shortly.) As with Section 110(1), the TEACH Act concerns only the ability of an educator to allow “performances” and “displays” of protected works for educational purposes; the ability to make copies of those works is not covered in the TEACH Act.

On the other hand, the TEACH Act does not allow a teacher to post the performance of an opera or musical comedy online — even for educational purposes — because operas and musicals are defined as dramatic works; the TEACH Act only concerns the performance of non-dramatic works. (But the fair use clause may allow a teacher to post snippets of the opera or musical online for educational purposes.)

Finally, the TEACH Act only allows “reasonable and limited” use of protected works. Unfortunately, there is no easy way to determine what qualifies as “reasonable” or “limited” use. As a general rule, it is better to use less of a work than more of a work if there is a choice. Any use of an entire work generally should be discouraged.

3. Qualifications of the TEACH Act

The TEACH Act contains several qualifications that schools or teachers must meet in order to limit copyright. Three of the qualifications are “educational nexus” qualifications: together, they generally say that the TEACH Act applies only when (a) a teacher (b) in a school (c) uses the protected works for educational purposes.

The educational nexus qualifications have their own prerequisite: any school that seeks to use protected works via the TEACH Act must be both “non-profit” and “accredited.”

The fourth major qualification concerns copyright policy: each school that wishes to use the TEACH Act must have (or develop) a policy that notifies students or other eligible users that they have responsibilities, and that the copyright owner has certain rights. I have summarized these qualifications in the following graphic.

I will explain each of these points, beginning with the requirement that a school be both “non-profit” and “accredited.”

(a) Institutional Qualifications

Only schools and governmental bodies can use the TEACH Act as a copyright exception, and this limitation is the basis for the educational nexus qualifications. Section 110(2)(A) says that a performance or display of a protected work can be made only when supervised by an instructor “as part of a class session offered as a regular part of the [educational] activities of a governmental body or accredited nonprofit educational institution.”

The TEACH Act is more restrictive than Section 110(1) in that the Act requires a school to be a non-profit entity and accredited. uses. (Section 110(1) only requires that the school be a non-profit entity.) For colleges and universities, accreditation must come from the U.S. Department of Education or the Council on Higher Education Accreditation; for secondary schools, accreditation must come from the state in which the school is located.

Assuming that a school is nonprofit and accredited, we can continue to assess TEACH Act eligibility by determining whether the performance or display has an educational nexus.

(b) Educational Nexus

First, Section 110(2)(A) requires teachers to supervise the performance or display of a protected work, although the level of supervision does not have to be constant. For example, an instructor does not have to be online while each student views a video stream. The teacher, however, would have to be in a position to post the video when the students need it, and (more importantly) remove that video within a reasonable amount of time after the students no longer need it.

Second, Section 110(2)(B) requires the performance or display of the protected work must be “directly related and of material assistance to” the teaching. In other words, there must be a substantial tie between use of the copyrighted work and the lesson that is being transmitted digitally. For example, I could allow an online transmission of a Public Enemy song in order to demonstrate the copyright implications inherent in digital sampling. This would serve as an online performance of a non-dramatic musical work for educational purposes. On the other hand, I could not post an online copy PE’s “Yo! Bum Rush the Show” solely for my students’ entertainment.

Third, Section 110(2)(C) requires the teacher to limit the number of people who can access the material. Generally, only students registered for the class and other essential personnel (i.e. a teaching assistant, a courseware administrator) should have access to the protected works. Schools usually meet this requirement when they use courseware that allows only registered students to access certain online course material.

(c) Copyright Policy

The fourth and final TEACH Act qualification — outlined in Section 110(2)(D) — requires that the school establish and enforce a copyright compliance policy, and provide reasonable notice to users that the material that is being used in the course may be protected by copyright. There are several distinct requirements in this provision.

First, Section 110(2)(D)(i) requires a school or government body to institute “policies regarding copyright.” Second, also found in Section 110(2)(D)(i), a school must provide informational materials to faculty, students, and relevant staff that “accurately describe, and promote compliance with” copyright law. North Carolina State University provides a good example of an institutional copyright policy. (.pdf)

Third, again in Section 110(2)(D)(i), a school must notify students that the online course materials may be protected by copyright. This requirement can be fulfilled by including a visible, digital stamp on the electronic file or on the Web page that contains the link to the relevant file. As a matter of practice, whenever I allow access to multimedia files for the classes I teach, I create an index page that contains links to the source material. I place the TEACH Act copyright notice on that index page. Usually, this is sufficient copyright notice.

One may ask whether the TEACH Act requires a teacher to provide a copyright notice on a courseware index page when he is linking to materials that exist on the Web instead of inside the courseware environment. I see nothing in the TEACH Act that requires teachers to do this. Practically speaking, though, courseware index pages often link to protected works that reside on the school’s network and protected works that reside on the open Web. Since the TEACH Act requires a teacher to provide the copyright notice for online course materials that reside on the school’s network, it is good practice to provide the same notice for materials that are available on the open Web.

The fourth and final policy requirement, codified in Section 110(2)(D)(ii), concerns digital rights management: restricting or locking digital content so that it cannot be accessed by unauthorized users. This section says that wherever there is a digital transmission of a copyrighted work for educational purposes, the school must establish “technological measures that reasonably prevent” students from (a) keeping the work after the class session, and (b) redistributing the work after the class session to others. (Normally, the class session would be a semester, or some other discrete period of time that ends when grades are issued.) This requirement also prohibits the school from hacking into, or otherwise interfering with, any digital rights management protocol that the copyright owner has placed on the content.

Again, most standard courseware systems provide the requisite DRM that reasonably keeps students from keeping or redistributing protected works. If you have questions about this issue, contact your courseware representative and ask whether and how their system is “TEACH Act compliant.”

4. Exceptions for Bootlegs and Distance Education Materials

The TEACH Act states that certain copyrighted works may never be performed or displayed, even though the school or teacher may have met all other qualifications. First, an educator cannot use the TEACH Act as a copyright exception if the protected works have been produced or marketed specifically for the distance education market. The school may be able to use fair use to perform or display such a work, but the school cannot use the TEACH Act. Congress included this section in order to protect the economic market for distance education materials.

Second, the TEACH Act has a “bootleg” provision that says a teacher may not knowingly use or transmit any copyrighted work that contains an unlawful performance or display. For example, a teacher cannot transmit a snippet of a pirated copy of Quentin Tarantino’s Reservoir Dogs in an online course and claim a legitimate use for educational purposes pursuant to Section 110(2) if she knows that the film (or the snippet) is illegitimate or illegal.

Both of these provisions appear in a parenthetical clause at the beginning of Section 110(2).

5. Liability Limitations & Online Storage Prohibitions

Buried in the last paragraph of Section 110 – separate from the text for Section 110(2) – is an interesting, but important provision. The provision does two things, First, it limits a school’s infringement liability if the school, by virtue of transmitting protected material, temporarily stores that material on its network. Second, the provision bars the school from keeping protected material on any school network that is open to students that are not registered for a particular class.

The same section also bars the school from keeping the copyrighted material available on a school network to eligible, registered students for any longer than “reasonably necessary to facilitate the transmission.” As a rule of thumb, a “reasonably necessary” period equates to a semester, or some other discrete period of time that ends when the grading process is completed.

For example, it would be proper to keep that performance of Moby Dick in a closed digital environment such as WebCT (which generally restricts access to the teacher, teaching assistant, and students of a particular class). On the other hand, putting that same performance on the school’s sports Web site would be improper because most of the people who access that site are not registered for the class. Further, keeping that material on the school’s network much longer than the class session — even within a closed courseware environment like WebCT — is illegal. (As a practical matter, network storage management and bandwidth considerations may force a school to remove course material from the school’s network after each semester.)

6. Digitization

Most of the key TEACH Act provisions are located in Section 110(2), but an important provision about digitizing analog materials is codified elsewhere. Section 112(f)(2) allows schools to digitize print or other analog materials (such as cassette audio tapes, vinyl records, and video tape) if three conditions are met. First, the school can digitize only an amount equal to that which could be performed or displayed under Section 110(2). Second, the school can digitize the analog work only if there is no digital version of that work already available. Third and finally, if there is a digital version available, then that version must be protected by some “technological protection measure” that keeps it from being used pursuant to Section 110(2).

LIMITATIONS RISK ANALYSIS

Simply put, the TEACH Act can be clear as mud. The Act is difficult to parse, and its requirements are rigorous—much more so than those found in Section 110(1). Given its complexity, educators may wonder whether using the Act is worth its alleged benefits.

The difficulty of interpreting the TEACH Act raises an interesting point about limitations risk analysis. In the first part of this series, I introduced the limitations risk analysis theory and The Limitations Pyramid. The Pyramid shows an inverse correlation between a limitation’s breadth and its infringement or litigation risk. To summarize, when a limitation applies narrowly to a small group, using that limitation carries with it a low infringement risk because the narrower limitations (such as the limitations in Section 110) apply only to specific parties who engage in specific conduct under specific circumstances. You either qualify for the limitation, or you don’t, and this clarity brings some measure of certainty. In turn, more certainty means less legal risk.

On the other hand, a broader limitation (like fair use) carries a higher infringement risk because it applies to a greater number of parties and a greater potential number of circumstances. The catch-all nature of a broad limitation requires one to make generalizations. Generalizations bring exceptions and uncertainty, and less certainty means more legal risk. The Limitations Pyramid is shown below.

What I didn’t address last week in my discussion of The Limitations Pyramid is the cost factor. Specifically, the TEACH Act imposes several costs that are not immediately apparent. At a minimum, the TEACH Act requires teachers or schools to do one or more of the following:

• write, review, and update copyright policies;
• schedule the posting and removal of protected materials to and from the network;
• monitor use of protected works;
• purchase and maintain courseware systems; and
• maintain and update competing digital rights management schemes.

And here’s the rub with the TEACH Act: technically, it is a narrow exception that should incur very little litigation risk. But because the TEACH Act is so complicated, it has several costs, and I consider these costs to be a separate, hidden risk (albeit not specifically a litigation risk).

Given these costs, it is reasonable for teachers to ask, “Is parsing through the TEACH Act worth the time, energy, effort and money that is required for compliance?” Some educators may decide that the increased resource commitments outweigh the alleged diminished copyright infringement risk. (An educator could also reasonably conclude that TEACH Act is so difficult to interpret that it is easy to misuse, and therefore the risk of copyright infringement is not diminished after all.)

In the end, and despite Congress’ best efforts, the TEACH Act may not be the balanced, fair copyright limitation it is intended to be. Narrower limitations may be easier to use and apply.

RESOURCES

K. Matthew Dames. Copyright Limitations Risk Analysis. CopyCense. Jan. 9, 2006.

U.S. Copyright Office. Copyright and Digital Distance Education. No date.

North Carolina State University. The TEACH Toolkit. No date.

Copyright Management Center. Copyright and Distance Education. Nov. 12, 2004.

Laura N. Gasaway. TEACH Act — Amended Section 110(2). Nov. 25, 2002.

American Library Association. The TEACH Act and Some Frequently Asked Questions. (Prepared by Kenneth D. Crews). No date.

METADATA

Author: K. Matthew Dames

Title: CommuniK.: Using Copyrighted Works in the Classroom

URL: http://www.copycense.com/2006/01/copyright_clear_1.html

Publisher: CopyCense, a division of Seso Digital LLC

Copyright: 2006, Seso Group LLC

Contact: copycense at g mail dot com

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC. CopyCense™ and CommuniK.™ are trademarks of Seso Digital LLC.