TEACH vs. Fair Use

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  • I'm still a little confused on this. If someone is teaching a partially distance ed course, is it not permitted to show a whole documentary to the off-site students? If you do that and say it's fair use, are you breaking a law?

    http://www.learner.org/resources/series123.html If I bought this for our library, and a prof showed some of these segments in her class, transmitting them to off-site students, is that okay? I guess it might vary somewhat from vendor to vendor, but since we have a lot of distance students, I need to get this down. Thanks!
  • There are two specific exceptions for performances for teaching in the copyright law. The first (section 110(1)) permits performances (showings, in the case of a film) of an entire work in a face-to-face classroom. The other one, section 110(2), is essentially the TEACH Act. It permits transmitted performances, but specifies that only "reasonable and limited portions" of a film may be transmitted. So in your hybrid course, these exceptions permit the in-class students to see the entire film but allow the off-site students to see only a portion of it via transmission. The difference is not really based on who the students are but on the need, for off-site students, to create a transmitted version of the film, which really frightens the movie industry because they see P2P file-sharing lurking in every corner.

    Fair use is another, different exception (section 107 of the Copyright Act). Since it is not defined by specific requirements, as the other two are, but by a balancing of factors, it is both more flexible and more contested. Relying on fair use always involves a risk analysis. So if you transmitted an entire film to distanced students, you could claim fair use, and a judge would decide if yours was a successful argument; it is impossible to say in advance if you would or would be be "breaking the law" (a better phrase for this civil tort is "infringing the rights"). But one can say that you are increasing the risk that the copyright holder will object and, perhaps, force you to make your fair use argument in court. Each institution must decide for itself where the line is past which the educational benefit of an activity is out-weighted by the risk of litigation, since even winning a lawsuit is very expensive.

    Personally, I am worried that a court would look at the TEACH Act and say that Congress has made there a specific decision about how much of a film educators could transmit, and that that decision stops short of the entire film. I would expect a court to refuse to allow fair use to "make up the difference" and permit transmission of a complete movie as fair use, especially since the "amount" factor in fair use rarely stretches to an entire work except in cases that are transformative. But that is my evaluation of where the "risk" line lies; it is not a definitive interpretation of fair use for this situation.
  • Thanks for the explanation and your thoughts on it. The TEACH act does restrict ALL audiovisual materials, right? Not just dramatic performances?
  • TEACH permits transmissions of performances of entire "non-dramatic musical and literary works" and reasonable and limited portions of other performances (which presumably includes films, as well as dramatic musical and literary performances). It also permits transmitted displays of amount comparable to what would be displayed in a live classroom. This last provision refers to images, etc. -- things that would be displayed. It does not, IMO, include text, which is seldom actually displayed in a live class except in exceptional situations.
  • Is it copyright infringement to make 10 copies of a currently published picturebook, translating the text to another language for use in a classroom of 10 students in order that they learn the language?
  • Phil -- sorry your question got dropped -- it popped up to the top again when it got spammed, which I suppose is a good use for spam!

    Anyway, this sounds to me like it would meet the criteria for classroom copying. You are making no more than one copy per student, which is good, and it sounds like a fairly spontaneous use. If you wanted to use the same picture book every year, you might want to seek permission, especially if a professional translation into the language you teach exists already. You could avoid this by using a new book each year, and making it clear that it is YOUR translation.

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