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Copyright

Limitations on copyright

There are several limitations on the exclusive rights of copyright holders, which means that under certain circumstances, no permission is needed when using a work.  

Three that apply in educational settings are:

In-class performances and displays - Title 17, §110(1) of the U.S. Copyright Code

The U.S. Copyright Code allows for some performances and displays of copyrighted materials without needing permission.  

§110(1) allows for in-class performances of certain works during face-to-face teaching.  

To claim this exemption and use a work without gaining the copyright holder's permisison, all provisions listed below must apply:

  • It must be a performance or display of a work (e.g. poetry, film, images);
  • of a lawfully made copy
  • by instructors or students
  • in the course of face-to-face teaching activities (not online)
  • at a nonprofit educational institution (such as SPU)
  • in a classroom or similar place devoted to instruction (e.g. library classroom/seminar room).

If all of the above provisions apply, there is no infringement of copyright and no permission is needed to use the work.

Points to consider:

When recording class sessions,

    • any copyrighted performances or displays involved are not covered by §110(1)
    • inform the participants that they're being recorded and obtain student permission

When recording student musicals or plays,

    • this use is not covered by §110(1)
    • obtain public performance rights (PPR) and follow the license terms
    • obtain permission from students to record performance

Reserve readings are not intended for in-classroom use, so they are not be covered by §110(1) (but may be fair use).

When using student work in class,

    • the student is the copyright holder of the work.
    • obtain permission from the student to use their work in class.

Image credit: "FBI Classroom" by Bill Erickson is licensed under CC BY-NC 2.0.

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

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.

TEACH Act Checklist

Faculty who want to incorporate works into digital transmissions for instructional purposes pursuant to the TEACH Act must meet the following conditions:

  •   My institution is a nonprofit accredited educational institution or a governmental agency.
  •   It has a policy on the use of copyrighted materials.
  •   It provides accurate information to faculty, students and staff about copyright.
  •   Its systems will not interfere with technological controls within the materials I want to use.
  •   The materials I want to use are specifically for students in my class.
  •   Only those students will have access to the materials.
  •   The materials will be provided at my direction during the relevant lesson.
  •   The materials are directly related and of material assistance to my teaching content.
  •   My class is part of the regular offerings of my institution.
  •   I will include a notice that the materials are protected by copyright.
  •   I will use technology that reasonably limits the students' ability to retain or further distribute the materials.
  •   I will make the materials available to the students only for a period of time that is relevant to the context of a class session.
  •   I will store the materials on a secure server and transmit them only as permitted by this law.
  •   I will not make any copies other than the one I need to make the transmission.
  •   The materials are of the proper type and amount the law authorizes:
    • Entire performances of nondramatic literary and musical works.
    • Reasonable and limited parts of a dramatic literary, musical or audiovisual works.
    • Displays of other works, such as images, in amounts similar to typical displays in face-to-face teaching.
  •   The materials are not among those the law specifically excludes from its coverage:
    • Materials specifically marketed for classroom use for digital distance education.
    • Copies I know or should know are illegal.
    • Textbooks, coursepacks, electronic reserves and similar materials typically purchased individually by the students for independent review outside the classroom or class session.
  •   If I am using an analog original, I checked before digitizing it to be sure:
    • I copied only the amount that I am authorized to transmit.
    • There is no digital copy of the work available except one with technological protections that prevent my using it for the class in the way the statute authorizes.

This checklist, and much of the material in this section of the guide, was taken from the University of Texas copyright Web site. An excellent resource in helping you determine what is considered fair use - and other copyright questions - can be found at their Copyright Crash Course website. It is licensed under a Creative Commons Attribution 4.0 International License, Copyright Crash Course and Georgia Harper. http://doi.org/10.15781/T24J09X6J 

For those who are interested in the TEACH Act specifically, you may consult the TEACH Act Toolkit.