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Online Teaching and Copyright

Would the use fall under the TEACH Act exception?

Typically faculty rely heavily on the in-class exception in U.S. copyright law, found in Title 17, §110(1) , which allows showing full length films, reading whole works, and sharing and discussing copyrighted works presented by either faculty or students.

With online teaching, the in-class exception does not apply.

If the material to be used is not already licensed or in the public domain, faculty can consider if the TEACH Act may apply to the works they plan to share in their online course.

There are many provisions that all need to be met to qualify under this exception (see below) and it can be confusing to determine if a use qualifies. If you believe it does, document your reasoning, include a copyright notice in your Canvas course, and share the resource with your students.

Points to consider:

  • the work must be a lawful copy and can only be shared by the faculty member (not by students)
  • showing entire films would not qualify under this exception
  • supplemental resources would not qualify under this exception

If the TEACH Act does not apply, then consider if fair use might apply.

TEACH Act (Online Performances/Distance Education) - Title 17, §110(2) 

This section will assist with questions regarding the following:

  • For online instruction (posts on Canvas or online courses):  using books, articles, videos, images, web pages, or other copyrighted works in any online modality (not an in-person classroom).

The TEACH Act (Technology, Education, and Copyright Harmonization Act) was implemented in 2002 and replaced the previous §110(2), expanding the scope of educators' rights to perform and display works and to make the copies integral to such performances and displays for digital distance education, making the rights closer to those that pertain in face-to-face teaching.

But there is still a considerable gap between what the statute authorizes for face-to-face teaching and for distance education. For example, as indicated above, an educator may show or perform any work related to the curriculum, regardless of the medium, face-to-face in the classroom - still images, music of every kind, even movies. There are no limits and no permission required. Under 110(2), however, even as revised and expanded, the same educator would have to pare down some of those materials to show them to distant students. The audiovisual works and dramatic musical works may only be shown as clips – "reasonable and limited portions," the act says. Most of the TEACH Act requirements are designed to allow transmission of copyrighted works (or parts thereof) to a legitimate student audience for a limited time, without permission or license fees, while preventing dissemination that could undermine the market for the works. Nothing in this act is intended to limit or otherwise to alter the scope of the fair use doctrine.

To claim this exception and use a work without gaining the copyright holder's permission, ALL provisions listed below must apply:

  • Course provisions:
    • It must be a lawful copy and not an off-the-shelf online course
    • either a performance of a nondramatic literary or musical work or reasonable and limited portions of any other work (e.g. film) OR display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session
    • by the instructor 
    • as an integral part of a class session 
    • directly related to teaching content (not supplemental materials)
    • only available for students officially enrolled in the course.
  • The overarching institution must:
    • be an accredited nonprofit educational institution (such as SPU)
    • have copyright policies and provide information to faculty, students, and relevant staff members about copyright laws as well as notice to students that materials used in connection with the course may be subject to copyright protection (sample notice).
    • not engage in measures that would make it easier to retain or disseminate work 
    • apply measures to the digital transmissions that reasonably prevent:
      • retention of the work in accessible form for longer than the class session
      • unauthorized further dissemination of the work (institution should use practices such as streaming, disabling right-click, thumbnails or low-resolution images)

Electronic reserves are not meant to be read or performed in class, so they do not fall under §110(2) (but may be fair use).

If any of the above provisions are not met, consider whether fair use would apply or request permission from the copyright holder.

Please see "The Original TEACH Act Toolkit" by LSU Libraries for more detailed information including an overview of the TEACH Act requirements, compliance checklists, permissions guide, and FAQs.  

Image credit: "computer" by jaci XIII is licensed under CC BY-NC-SA 2.0.