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The TEACH Act Becomes Law
The Technology Harmonization and Education Act (TEACH Act), was signed into law by President George W. Bush on November 2, 2002.Its passage was hailed by the library and academic communities as a major new law supporting distance education.The bill has been strongly supported by colleges, universities and libraries because it eases copyright restrictions on the use of digital materials in distance education programs, clearing the way for the enhanced quality of online education.Because of the significance of this bill, its progress through Congress had been closely monitored by a number of advocacy organizations.
The elements of the new law affect the creation, use, dissemination and storage of digital materials used in distance education.These new rights and requirements will have a major impact not only on distance education itself, but will also substantially impact the visual resources and library professions.
The bill, S.487, initially introduced by Senator Orrin G. Hatch in March 2001, was approved by the Senate, after some changes, in June of that year.After moving into the Judiciary Committee, it had been stalled there by its Chairman, James Sensenbrenner, Jr. (Republican.)The TEACH Act took a big step forward after receiving unanimous approval from the House Judiciary Committee in July 2002.The bill, containing language identical to the version passed by the Senate, was passed by the House of Representatives in early October of this year.
The new provisions in the TEACH act implement the recommendations of the Report on Copyright and Digital Distance Education, released in May 1999, by the Register of Copyrights, Marybeth Peters.1This report is the result of a requirement of the Digital Millennium Copyright Act (DMCA) of 1998, that the Copyright Office formally advise on specific issues related to distance digital education.One of the key issues identified in the DMCA was “the need for an exemption from exclusive rights of copyright owners for distance education through digital networks”.The Copyright Office report did recommend changes and updates in exemptions for distance education, with safeguards to protect and control dissemination of digital materials.The report noted that the existing copyright law, dating from 1976, did not contain provisions governing Internet and digital technologies, or asynchronous learning situations, since the Internet and associated technologies had not yet developed in the forms we recognize today.
The language of the TEACH Act closely reflects the recommendations of the Copyright Office report.It clarifies, updates and expands the types of transmissions and categories of works described Sections 110 and 112 of the U.S. Copyright Law, which allow copyrighted works to be used in certain educational circumstances without having to seek permission from the copyright holder.2
Under the TEACH Act, Section 110(2) of the Copyright Act has been expanded to allow not only the digital delivery of non-dramatic literary and musical works, but also reasonable and limited portions of any other work, namely movies, plays and other dramatic works.The display of any work, already allowed for educational purposes under the previous copyright law, is newly quantified as “an amount comparable to that typically displayed in the course of a live classroom session”.
The bill adds the word “accredited” to define the TEACH Act’s application specifically to “accredited nonprofit educational institutions”, in addition to governmental bodies.Notably, the requirement under the old law that the performance or display be transmitted within a physical classroom has been removed, opening the way for asynchronous delivery via computer networks.Safeguards for protection of copyrighted materials in the digital environment include a new requirement that reception of these transmissions be limited to students “officially enrolled” in the course.
The new law places a number of additional stipulations on the educational or governmental institution transmitting copyrighted materials in digital format.The TEACH Act requires that the transmitting body or institution implement policies regarding copyright, and further, that informational materials concerning these policies be made available to faculty, students and staff, as part of a general promotion of compliance with U.S. copyright laws.
The transmitting body or institution is now responsible for allowing access to the material only for the duration of the course; and secondly for instituting measures to “reasonably prevent” unauthorized further dissemination of the work “in accessible form”.
Under the TEACH Act, digital copies must be “legally obtained.”There is a breadth of application in this regard.The Act specifies that an institution may convert from analog to digital the portion or amount of that work authorized if no digital version of the work is available or if the available digital version is subject to technological measures that prevent its use for distance education.Significantly, recent authorities have interpreted “legally obtained” as consistent with material acquired by virtue of fair use.3
The TEACH Act makes no changes to the current language of the “Fair Use” exemption, covered by Section 107 of the Copyright Act.As the language used here is technology-neutral, it is conceived of as the broadest and most flexible limitation on exclusive rights of copyright owners, and may be used to claim an exemption in situations where the specific exemptions do not cover.The 1999 Report on Copyright and Digital Distance Education advocates “continued availability of the fair use doctrine as a safety valve”.Nonetheless, in practice, the fair use exemption continues to be viewed as having an inherent degree of uncertainty.
What the TEACH Act will mean for us as visual resources professionals is not all yet clear.The complexities anticipated in applying this new law to digital distance education were discussed in an August 2001 workshop organized by the American Library Association (ALA) Office for Information Technology Policy (OITP), the National Association of State Universities and Land Grant Colleges, and other related associations.The purpose of the workshop was to educate attendees about the provisions of the TEACH Act, and to discuss its impact, specifically possible strategies for implementation of and education about institutional copyright policies mandated by the Act.4Now that the TEACH Act has become law, the work of interpreting it, and developing strategies for compliance must continue.In order to facilitate this work, the ALA Washington Office offers a web site to help explain some of the law’s complexities. It is located at http://www.ala.org/washoff/teach.html.
The Act’s stipulation on institutional copyright policies will certainly have an impact on the environment in which we work.Issues of copyright will need to be addressed and reviewed at the institutional level.We as visual resources professionals can play a key role in gathering and preparing information on copyright, and in help in shaping institutional copyright policy.Engaging in these activities may be a means of affording increased support for the visual resources profession, and will certainly aid in broadening institutional awareness of copyright issues.
Certainly the TEACH Act expands and safeguards the copyright exemptions needed for digital distance education to flourish; yet it does not directly address the issues raised with digital image databases or digital image libraries.The TEACH Act states that digital materials placed on a network can reside there only for the duration of the course.Though not specifically mentioned in the Act, if applied to digital image databases, a major obstacle is created:This time limitation is contrary to the nature of an online digital image database, accessible on an ongoing basis and accessed by a number of different instructors and students for a variety of courses.While lauding the passage of a bill that provides a more open environment for digital distance education, the visual resources community must continue to work for a supportive legal environment, as database protection legislation, possibly detrimental to libraries, is developed.5
Jane Darcovich
University of Illinois at Chicago
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1 full text of the 353-page report is available at http://www.copyright.gov/reports/de_rprt.pdf
2full text of Bill S.487 is available at http://www.ala.org/washoff/teach.pdf
3 email correspondence between author and Robert Baron, July 30, 2002
4http://www.ala.org/acrl/nffnov01.html mentions the workshop. There is no summary of the discussion.
5 http://www.ala.org/washoff/database.html brings together a number of useful links on database protection legislation
