Exceptions for Instructors in U.S. Copyright Law

This tool covers Section 110(1), the “face to face teaching” exception and Section 110(2), the TEACH Act (Technology, Education and Copyright Harmonization Act)

These sections provide for the performance or display of copyrighted material in the classroom ("Face to face" exception) [examples] or for its use in an analogous fashion in online or hybrid courses (TEACH). [examples]

These sections and this tool do not cover the use of any content that would not normally be viewed in the classroom — e.g. the creation of coursepacks or electronic reserves.

I. The results from this tool are valid only for those uses that take place within the United States. In other countries, the copyright law of those countries is in effect.
II. Because of international copyright agreements, copyrighted materials from other countries are afforded the same protections and are subject to the same exceptions as materials created in the U.S.
III. As such, the national origin of a copyrighted work has no bearing on these educational exceptions, as long as the course in which they are used takes place in the U.S.A.

THIS TOOL IS: Intended as a source of information for educators & others to better understand the educational exceptions available in U.S. Copyright Law.
THIS TOOL IS NOT: A source of legal advice or assistance. Results are only as good as the input provided by the user and are intended to suggest next steps, and not to provide a final judgment.
The American Library Association, the ALA Office for Information Technology Policy, and Michael Brewer are not providing legal advice in the use of this tool.

Performance: 1) Screening a film or television program, playing a musical or other recording (or portions thereof), etc., 2) Having students perform a scene from a play, ballet, opera, score, etc.
Display: 1) Showing your class a PowerPoint presentation that includes copyrighted images and/or text; 2) Using the computer and projection system in your class to direct your students through an online photography exhibit hosted by the British Library

Example 1: Using a course management system to provide student access to Powerpoint slides that you've created for an assignment and which contain images and text copied from various sources
Example 2: Providing students with temporary, authenticated access to streaming video or audio clips you've put together from popular culture for them to critique in a required writing assignment.

Clarification: A legal copy is one that was legally obtained (purchased from a reputable vendor, checked out from a library, etc.).
Examples: 1) If you're screening a film in class, you should not use a dubbed copy.* Use a legally acquired copy. 2) If you're streaming portions of a film (under TEACH), the copy from which the streaming files are created must be a legal one.

*Note: While there were "fair use" guidelines for the educational use of off-air recordings (content taped from television) included in a House Report (H.R. 97-495), these are guidelines and are not the law. [See Circular 21, page 22]. Any use of this type (of copyrighted content recorded from television or from some other source) would also have to be justified separately under Fair Use.

Bottom Line: If you are unsure of whether or not your copy is legal or was legally obtained (e.g. it's a DVD-R of a popular film with no case or studio information printed on it), you should check with a librarian or a copyright specialist.

Clarification: If the performance or display will happen in the classroom and as part of the course, it would meet the "face to face" requirement.

Display: Examples of "displaying" could include posting copyrighted photographs, images or text on a secure course webpage.

Performance: Examples of "performing" could include providing access to streaming video or audio through a secure course management system.

Definition: "Mediated" here means that the course has an instructor involved in directing it.*
*From Senate Report (107th Congress): [TEACH] "is not intended to require either constant, real-time supervision by the instructor or pre-approval by the instructor for the performance and display. Asynchronous learning, at the pace of the student, is a significant and beneficial characteristic of digital distance education and the concept of control and supervision is not intended to limit the qualification of such asynchronous activities for this exemption" (From Part IV, "Section-by-Section Analysis")

Clarification: 1) The course may be entirely online, or may be a traditional course that has some instructional activities that take place virtually.
Clarification: 2) The display or performance may take place virtually at the same time for all students and the instructor (synchronous), or may take place at different times (asynchronous).*
*From Senate Report (107th Congress): "For our nation to maintain its competitive edge, it will need to extend education beyond children and young adults to lifelong learning for working adults, and to reach all students of all income levels, in cities and rural settings, in schools and on campuses, in the workplace, at home and at times selected by students to meet their needs. Distance digital education helps make this possible, whether in the traditional sense, when instructor and student are separated in place and perhaps in time, or in new hybrids of traditional classroom education combined with online components" (under Part I, "Purpose")
*From Senate Report (107th Congress): "Asynchronous learning, at the pace of the student, is a significant and beneficial characteristic of digital distance education and the concept of control and supervision is not intended to limit the qualification of such asynchronous activities for this exemption" (under Part IV, "Section-by-Section Analysis")

Clarification: Access to the online display or performance of any materials under this section must end when the course ends.

Example: Instructional materials or content (podcasts, assignments, video tutorials or clips, etc.) created specifically for online courses designed for professionals who have ongoing learning or professional development requirements as part of their continuing certification (e.g. medical professionals, lawyers, IT technicians, etc.)

Acceptable: The instructor could direct a teaching assistant (e.g. as part of an online discussion) or student (e.g. as part of an assignment) to post content that would be covered by this exception.
Unacceptable: Students using the course management system to share music files, photographs, or other copyrighted material that were not directly related to course assignments.

Clarification: Does the use of the material 1) directly support an identified learning outcome, or is it 2) required for the completion of an assignment or other activity in the course syllabus?

Example: Displaying copyrighted photographs, images or text (but in amounts that would normally be shown in class) on a secure course webpage or course management system

Acceptable Example: Scanning and posting to Blackboard a dozen or so provocative images, selected to generate lively discussion board postings from your class on a new course topic.
Unacceptable Example: Scanning and posting to Blackboard a whole slide library that students might use in their research.
Unacceptable Example: Scanning and posting an entire textbook so students wouldn't have to buy it or come into the library to use the one on reserve.

Clarification: Neither "dramatic" nor "nondramatic" are defined in the law.
Dramatic Works: Generally, in dramatic literary works the narrative is told through dialogue and action (i.e. theatrical performances)
Nondramatic Works: Thus, the performance of a nondramatic literary work would include things like recorded recitations from books or other sources

Clarification: "Reasonable and limited" is not defined in the law itself*
*From Senate Report (107th Congress): "[W]hat constitutes a 'reasonable and limited' portion should take into account both the nature of the market for that type of work and the pedagogical purposes of the performance." The Report also defines 'reasonable and limited' as "less than the entire work" (under Part IV, "Section-by-Section Analysis")
Conclusion: As such, 1) the amount used should not exceed that which is required to provide for the educational objectives set forth by the instructor; 2) It should not exceed what would normally be performed during an in-class session, 3) Should be less than the entire work, and 4) Consideration should be given as to the potential effect the performance of the amount under consideration could have on the market for the work.

Clarification: "Other works" includes 1) any audiovisual works (film or video of any kind), or 2) performances of dramatic literary or musical works (theatrical literary or musical productions like plays, ballet or opera). Only "reasonable and limited portions" of these categories of works are allowed under this exception.

Note: An example of interfering with or circumventing technological controls would be circumventing or disabling the CSS [Content Scramble System] anti-piracy protections that control access to and inhibit the duplication of many commercial DVDs (like Macrovision, etc.)
Clarification: It is illegal to circumvent these kinds of technological controls, except for under very limited circumstances laid out by the Librarian of Congress in 2000, and reviewed every 3 years. None of the current rules (as of early 2009) are applicable under TEACH. See: http://www.copyright.gov/1201/

Example: Using a course managment system, or other means of authenticating valid users, to limit access only to those enrolled in the course
Example: Using audio/video streaming or other technologies to ensure that video or audio clips cannot be retained or further disseminated

Note: An example of this would be circumventing or disabling the CSS [Content Scramble System] anti-piracy protections that control access to and inhibit the duplication of many commercial DVDs (like Macrovision, etc.)
Clarification: It is illegal to circumvent these kinds of technological controls, even if your use would otherwise meet all the requirements of this exception.
Clarification: As noted before, however, if the content you'd like to use is on a DVD that employs anti-piracy protections and the content is also available in analog format (VHS, 16mm, etc.) the analog copy can be legally digitized and used under this exception [Section 110(2) - the TEACH Act]

I. This tool can collect, reformat, and publish the information you choose to provide it (in PDF format)
II. You may choose to save the PDF file to your computer, print it out for your records, email it to a colleague or copyright specialist for assistance or comment, or just view it on your screen
III. You may provide as much or as little information as you like, and none of the information you provide is retained on the server after you exit the site

Examples: 1) the name and number of course, 2) the amount to be used (20 second clip, 2 8 minute clips, entire work, etc.), 3) the expected learning outcomes or assignment[s] associated with the display or performance of the copyrighted material, etc.

Checking "Yes" will include on the PDF all of the explanatory notes and descriptions provided by this tool for the sections you've completed.

I. This tool is licensed under a Creative Commons Attribution NonCommercial Share Alike license. You are free to copy, distribute and transmit the work under the conditions set out in the license.
II. Modifications to the tool, however, should be limited to the addition of local copyright contact information or resources on the "Local Info & Contacts" page. Permission should be sought for any other changes to the tool (and please don't hesitate to ask or make suggestions)
III. If you like a copy of this tool, or would like to talk more about how you might use it at your own institution, please contact Michael Brewer or Carrie Russell at ALA's Office for Information Technology Policy, and we will supply you with all the necessary files and instructions