Stephen W. Watts Northcentral University

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Overview Copyright principles Intellectual Property Balance Education before the TEACH Act Fair Use Doctrine Technology, Education, and Copyright Harmonization (TEACH) Act of 2002 TEACH Act Impact on Instructors TEACH Act Views Questions References

Copyright The U.S. Constitution provides protections for creative works of the mind as long as they meet three conditions: The work is original The work represents an expression, and The work is perceivable in a set form.

Intellectual Property Balance Copyright law in generally based on a balance between two competing interests: The creators, or copyright holders economic interest to be able to profit from their labors Society benefits from the sharing and discovery of new knowledge

Distance Education before the TEACH Act Required sharing of copyrighted material in a physical classroom Precluded the transmission of copyrighted material digitally online

Fair Use Doctrine Five factors that are weighed to determine fair use: The purpose of the work The nature of the work The amount of the work used Affect of the use on the potential market, and Good faith

Technology, Education, and Copyright Harmonization Act, 2002 “The TEACH Act is a clear signal that Congress recognizes the importance of distance education, the significance of digital media, and the need to resolve copyright clashes” -- (Crews, n.d., Context of Distance Education, para. 1).

TEACH Act Impact on Instructors Limitations Imposed on Instructors Benefits of the Act on Instructors Subject Matter Considerations Transmission Conditions

Limitations Imposed on Instructors The amount of material used is comparable to a live, face-to-face classroom. The material must be delivered under the direction of an instructor The material has to be directly related to the course topic The material is distributed only to enrolled students, for a limited period of time Both instructor and students must demonstrate their compliance with institutional copyright policies

Benefits to Instructors Expansion of copyrightable material that falls under fair use Extends allowable locations to more than a physical classroom Allows student retention of material for a short period of time Allows conversion of analog works to digital formats

Subject Matter Considerations Allowed Nondramatic literary works Nondramatic musical works Limited Any other works in “reasonable and limited portions” (17 U.S.C. § 110) Amounts comparable to that shown in “a live classroom session” (17 U.S.C. § 110) Not allowed Commercially available educational materials (Crews, n.d.) Copies “not lawfully made and acquired” (17 U.S.C. § 110)

Transmission Conditions Materials are accessible only to enrolled students The transmission process is circumscribed to the extent of technical feasibility.

TEACH Act Views Views on the TEACH Act: Spreads the liability for infringement around Doesn’t go far enough Opportunity and responsibility combined Destructive of knowledge advancement Hampers educators Intimidates educators

An Opinion The original intent of the Copyright Act was “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” (U.S. Constitution, article 1, § 8). The current system of control and limitation neither promotes the good of society, nor limits the duration of copyright protections. The current system promotes the “slow extermination of the public domain” (McDermott, 2012, p. 16) and runs counter to the original intent of the Founders and of the law.

Questions ? What questions do you have regarding the TEACH Act and its impact on distance learning and education?

References Burgunder, L. B. (2011). Legal aspects of managing technology (5 th ed.). Mason, OH: South-Western Cengage Learning. Crews, K. D. (n.d.). Distance education and the TEACH Act. Retrieved from American Library Association (ALA) website: entDisplay.cfm&ContentID=25939 Dougherty, W. C. (2010). Managing technology: The copyright quagmire. The Journal of Academic Librarianship, 36, doi: /j.acalib Galin, J R., & Latchaw, J. L. (2010). From incentive to stewardship: The shifting discourse of academic publishing. Computers and Composition, 27, doi: /j.compcom Litman, J. (2001). Digital copyright. Amherst, NY: Prometheus Books. Lyons, M. G. (2010). Open access is almost here: Navigating through copyright, fair use, and the TEACH Act. Journal of Continuing Education in Nursing, 41(2), doi: / McDermott, A. J. (2012). Copyright: Regulation out of line with our digital reality? Information Technology & Libraries, 31(1), doi: /ital. v31i Simon, D. A. (2010). Teaching without infringement: A new model for educational fair use. Fordham Intellectual Property, Media & Entertainment Law Journal, 20(2), Retrieved from and-entertainment-law-journal/iplj.htm Sun, J. C., & Baez, B. (2009). Intellectual property in the information age: Knowledge as commodity and its legal implications for higher education. San Francisco, CA: Wiley/Jossey-Bass. Technology, Education, and Copyright Harmonization, 17 U.S.C. § 110 (2002). U.S. Constitution. article I, § 8. Waxer, B. M., & Baum, M. L. (2006). Internet surf and turf revealed: The essential guide to copyright, fair use, and finding media. Boston, MA: Thomson Course Technology. Wilson, L. (2005). Fair use, free use and use by permission: How to handle copyrights in all media. New York, NY: Allworth Press.