Copyright and Accessibility: Fair Use and the TEACH Act

Fair use is a section of copyright law (Section 107) that allows non-copyright holders to use copyrighted materials without permission. For a work to be used under fair use, it must abide by four factors:

1. Purpose of the use (commercial or noncommercial)
2. Nature of the work (educational or entertaining)
3. Amount of the work being used (percentage-wise or whether the "heart" of the work is shared)
4. Market effect (does it detract from sales)

For an educational institution, the purpose will usually be noncommercial, but the other factors are important to consider. For example, sharing a large portion of a book not only violates the third factor, but likely affects sales.

It's also worth noting that the amount of work can fall into concerns on digitization, as outlined in this guide from Montana State University Northern, which provides guidance from a Copyright Office circular (PDF) in regards to how copying materials for students should be handled under copyright.

Here are some resources to help you with determining fair use for your classroom:

• Copyright and Intellectual Property Toolkit from University of Pittsburgh
  This guide gives information on fair use, some example scenarios, and links to further resources.
• Copyright Fair Use Checklist from Columbia University
  This thorough, printable checklist can help provide documentation as to your thought processes of fair use in the classroom.
• Copyright Fair Use Checklist (Interactive) from Ohio State University
  This interactive checklist is adapted from the above, and is usable for general checks if a printed resource isn't required.

These are examples of the kinds of activities that probably require permissions of some sort on most campuses:

• Digitizing, displaying and transmitting analog works. As the demand for online course materials increases, libraries and faculty need permission to digitize and distribute materials electronically when the amount used or the manner of presentation exceeds the bounds of fair use or other statutory exemptions. The Copyright Clearance Center can grant permission to digitize, display and transmit print works.
• Using digital works beyond the terms of an access license. Universities license huge amounts of electronic information by acquiring it directly from the publisher or from aggregators who have combined it into a database. If universities are not careful, however, they will find they have acquired this material in a manner that precludes the uses they may be expected to accommodate. Careful attention to the details of software and database licenses is very important.
• Photocopies. While photocopies have diminished in importance, they are still a part of university activities. Many universities already license some or all of their copy center photocopying activities such as coursepacks; their interlibrary loan photocopying activities that exceed the copying permitted by Section 107; document delivery services; some reserve photocopies; and sporadically, other copies.

As faculty copying is "institutional copying," fair use is insufficient to cover all the copying that a university user might need to perform to fully utilize library materials.

Information on the TEACH Act is provided here for awareness, but until Columbia College has an institutional copyright policy, we do not meet the requirements. Until then, please consider fair use with regards to copyright.

TEACH Act Coverage

The TEACH Act derives from copyright law in these rights from Section 110(2):

• Transmitting performances of all of a non-dramatic literary or musical work: Non-dramatic literary works as defined in the Act exclude audiovisual works; thus, examples of permitted performances in this category in which entire works may be displayed and performed might include poetry or short story reading. Non-dramatic musical works would include all music other than opera, music videos (because they are audiovisual), and musicals.
• Transmitting reasonable and limited portions of any other performance: This category includes all audiovisual works such as films and videos of all types, and any dramatic musical works excluded above.
• Transmitting displays of any work in amounts comparable to typical face-to-face displays: This category would include still images of all kinds

Exclusions from Coverage

Not everyone, nor every work, is covered. Section 110(2) only applies to accredited nonprofit educational institutions. The rights granted do not extend to the use of works primarily produced or marketed for in-class use in the online education market; works the instructor knows or has reason to believe were not lawfully made or acquired; or textbooks, coursepacks and other materials typically purchased by students individually.

This last exclusion results from the definition of "mediated instructional activities," a key concept within the expanded Section 110(2) meant to limit it to the kinds of materials an instructor would actually incorporate into a class-time lecture. In other words, the TEACH Act covers works an instructor would show or play during class such as movie or music clips, images of artworks in an art history class, or a poetry reading. It does not cover materials an instructor may want students to study, read, listen to or watch on their own time outside of class. Instructors will have to rely on other rights to post those materials, such as the fair use statute, or get permission.

Conditions of Coverage

The performance or display must meet the following criteria:

• A regular part of systematic mediated instructional activity
• Made by, at the direction of, or under the supervision of the instructor
• Directly related and of material assistance to the teaching content, and
• For and technologically limited to students enrolled in the class
• The institution must:
• Have policies, provide information about, and give notice that the materials used may be protected by copyright
• Apply technological measures that reasonably prevent recipients from retaining the works beyond the class session and further distributing them, and
• Not interfere with technological measures taken by copyright owners that prevent retention and distribution

Authority for Copying

A new section was added to the Copyright Act to authorize educators to make the copies necessary to display and perform works in an online environment. New Section 112(f) (ephemeral recordings) works with Section 110 to permit those authorized to perform and display works under 110 to copy digital works and digitize analog works in order to make authorized displays and performances so long as:

• Such copies are retained only by the institution and used only for the activities authorized by Section 110, and
• For digitizing analog works, no digital version of the work is available free from technological protections that would prevent the uses authorized in Section 110

Because of the many limitations, Section 110(2) won't go far enough in many situations; remember that educators still have recourse to fair use to make copies, create derivative works, display and perform works publicly and distribute them to students. So, don't be discouraged by Section 110(2)'s scope and complexity. If it covers what you want to do and you and your institution can comply with all of its conditions and limitations, great! If it does not, you still have the fair use statute.