Copyright law governs the use of copyrighted materials in the online-learning context. Accordingly, any use of copyrighted materials by MCCCD faculty or students in the online-learning context must comply with MCCCD's Copyright Guidelines.
The Technology Education and Copyright Harmonization (TEACH) Act was enacted in 2002 and updated the copyright law to expand the ability of certain institutions to offer distance or online learning. The TEACH Act facilitates and enables the performance and display of copyrighted materials for online education by accredited, non-profit educational institutions that meet the TEACH Act's qualifying requirements. Specifically, section 110(2) of the TEACH Act covers online education as well as face to face teaching which has an online, web-enhanced, transmitted, or broadcast component.
The TEACH Act's primary purpose is to balance the needs of online learning and educators with the rights of copyright holders. The TEACH Act may exempt from liability the transmission, including over a digital network, of a non-dramatic, or a limited portion of a dramatic, performance or display of a copyrighted work by an accredited non-profit educational institution to students officially enrolled in a course.
Expanded Rights under the TEACH Act
The expanded rights under section 110(2) of the TEACH Act include:
- The ability to transmit performances of all non-dramatic literary or musical works and display of all works. Note that non-dramatic works exclude audiovisual works. Examples of permitted performances include a poem or short story reading. Non-dramatic works would also include all music except opera, music videos and musicals because it excludes audiovisual works. A performance means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.
- The ability to transmit reasonable and limited portions of any other performance. This includes all audiovisual works such as films and videos and any dramatic musical works excluded in number 1 above. This does not include works produced or marketed primarily for display as part of mediated instructional activity via digital network. The 'reasonable and limited portion' requirement applies to the performance of any type of work (other than nondramatic literary or musical works which can be performed and transmitted in their entirety). In determining what is reasonable and limited one should take into account both the nature of the market for that type of work and the pedagogical purposes of the performance.
- The ability to transmit displays of any work in amounts comparable to a typical classroom setting. To display a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.
In summary, the TEACH Act expands the range of allowed works. The TEACH Act permits the display and performance of nearly all types of works, or at least portions thereof. It also expands receiving locations of teaching or educational materials. For example, educational institutions may now reach students through distance or online education at any location. The TEACH Act allows retention of content and student access for a brief period of time, and it permits copying and storage that is incidental or necessary to the technical aspects of digital transmission systems. In order to facilitate digital transmission, the TEACH Act permits digitization of some analog works, but in most cases only if the work is not already available in digital form.
Exclusions from Coverage
Not everyone, and not every work, is covered under the TEACH Act. Section 110(2) only applies to accredited nonprofit educational institutions, such as the MCCCD. However, even for accredited nonprofit institutions, the rights granted under the TEACH Act do not extend to:
- the use of works primarily produced or marketed for in-class use in the digital distance education market, e.g., digital educational materials or works developed and marketed for use in a physical classroom;
- works that the instructor knows or has reason to believe were not lawfully made or acquired;
- textbooks, coursepacks and other materials typically purchased by students individually.
The third 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 face-to-face 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 must rely on other rights they may have to post those materials, such as the Fair Use Statute, or they may simply be required to get permission.
Guidelines for Providing Online Access to Materials Performed or Displayed in an Online Course
The following guidelines apply to the performance or display of electronic materials that may be used for an online course or seminar.
- Authentication: To comply with the TEACH Act's provisions, the MCCCD must use secure authentication technology to restrict access to copyrighted materials placed within a course. When properly maintained, official courseware packages (such as Canvas) that restrict distribution of materials only to students in the class meet the requirements of the TEACH Act. Performances and displays of copyrighted materials, other than those which the individual instructor created, should not be available on a faculty member's webpage unless:
- They have received permission from the copyright holder.
- The MCCCD has a license that permits such use of the work.
- Course web pages are password protected limiting access to students in the class, and meet all of the TEACH Act requirements.
- Current Enrollment: Access to performances and displays of copyrighted materials must be limited to students currently enrolled in the course.
- Time Limits: Copyrighted electronic materials should be available for a predetermined amount of time only. For example, a single class session. This can be achieved through control of the content via password or time limits applied to the internal hyperlink or folder access.
- Displays: A display of copyrighted works such as copies of art, graphics, photographs, etc., in an online classroom must be comparable to what would typically be displayed in a live classroom.
- Performances: The extent to which a copyrighted work may be performed without obtaining a license to do so depends on the type of work. The following may be performed:
- Entire nondramatic literary and musical works.
- Limited and reasonable portions of other works such as audiovisual works and motion pictures may be shown or performed.
- No portion of a work produced solely for use in online instruction.
- Download Controls: Reasonable measures must be taken to prevent retention and/or dissemination of electronic works for longer than the prescribed time period, generally a single class session. Copyrighted images and graphics should be made available in a format with limiting printing and saving controls. Copyrighted electronic materials such as video and audio should be streamed to avoid the downloading and saving of the file.
TEACH Compliance Checklist
Page Updated 05/20/14