Exceptions for Instructors in U.S. Copyright Law

Your use does not meet the requirements of Section 110(2) of the U.S. Copyright Code (also known as the TEACH Act), exempting it from requiring the permission of the copyright holder.

Your institution must address every one of the criteria listed in the previous slide.

For the full text of the law, visit the U.S. Copyright Office website.

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This tool is valid for those uses that meet the requirements and which take place within the United States. In other countries, the copyright law of those countries is in effect. 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 here. As such, the national origin of a copyrighted work has no bearing on these educational exemptions 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 exemptions available in the U.S. Copyright Code.

THIS TOOL IS NOT:
A source of legal advice. 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. Neither the American Library Association, the ALA Office for Information Technology Policy nor Michael Brewer are engaged in providing legal, copyright or other professional advice.

A legal copy is one that was legally obtained (purchased from a reputable vendor, checked out from a library, etc.). A duplicate copy (made from a colleague's copy, downloaded off the internet, taped from television or radio, etc.) would generally not be a legal copy. If you are unsure of whether or not your copy is legal or was legally obtained, you should check with a librarian or a copyright specialist.

This exemption covers what is normally an exclusive right of the copyright holder - the right to display or perform a copyrighted work. Examples of this might be displaying copyrighted photographs, images or text in a PowerPoint presentation; screening an entire film or clips from it; playing or performing a musical, dramatic or choreographed work, etc.

Examples of "displaying" could include posting copyrighted photographs, images or a limited amount of text (e.g. text on a PowerPoint presentation) on a secure course webpage. Examples of "performing" could include providing access to streaming video or audio through a secure course management system. Note: Posting copyrighted articles, book chapters, or other lengthy excerpts of text in a CMS would not be covered by the TEACH Act [Section 110(2)], but would likely be covered by Fair Use [Section 107]. For more information, see the Fair Use Evaluator.

"Mediated" here means that the course has an instructor involved in directing it. However, [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 " (Senate Report (107th Congress 31).

The course may be entirely online, or may be a traditional course that has some instructional activities that take place virtually. While this is not specifically noted in the law one way or another, it is specifically mentioned in the Senate Report (107th Congress 31) in the purpose statement "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."

The display or performance of the work may take place virtually at the same time for all students and the instructor (synchronous), or may take place at different times (asynchronous). While this is not specifically noted in the law one way or another, it is specifically mentioned in the Senate Report (107th Congress 31) in the purpose statement "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."

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

An example might be online materials (podcasts, assignments, video clips) produced specifically for courses designed for professionals (medical professionals, lawyers, etc.) who are required to complete a certain amount of continuous learning or professional development to remain certified.

For example, 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. An example that would not be covered might be students using the course management system to share music files, photographs, or other copyrighted material that were not directly related to course assignments.

For example, does it directly support an identified learning outcome or is it required for the completion of an assignment or other activity on the course syllabus?

Examples of this might include displaying copyrighted photographs, images or a limited amount text (e.g. text on a PowerPoint presentation) on a secure course webpage or course management system.

For example, posting entire articles, book chapters, or lengthy excerpts of text on a secure course webpage or CMS would not be allowed under this exception, since that would not be something typically displayed (shown on a screen) in the course of a live classroom session. However, posting individual articles or book chapters would likely be covered by Fair Use [Section 107]. For more information, see the Fair Use Evaluator.

Neither "dramatic" nor "nondramatic" are defined in the law. Generally, in dramatic literary works the narrative is told through dialogue and action (i.e. theatrical performances]. Thus, the performance of a nondramatic literary work would include things like recorded recitations from novels, textbooks, poetry, etc.

The Senate Report states that "what 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." As such, the amount used should not exceed that which is required to provide for the educational objectives set forth by the instructor. It should also not exceed what would normally be performed during an in-class session.

"Other works" would include any audiovisual works (film, video, etc.), or performances of dramatic literary or musical works (plays, operas, etc.). Only "reasonable and limited portions" of these categories of works are allowed under this exemption.

An example of this would be CSS [Content Scramble System] anti-piracy protections (like Macrovision, etc.) It is illegal to circumvent such systems, 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/

An example of this would be ensuring that video or audio clips cannot be retained or disseminated (by using video/audio streaming or other technologies).

It is illegal to circumvent anti-piracy controls, even if your use would otherwise meet all the requirements of this exception. An example might be circumventing CSS [content scramble system] anti-piracy protections on a DVD in order to make video clips to stream to your class. In such cases, however, if an analog version (e.g. VHS) of the given title is available, that copy may be digitized and used under TEACH.

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