Distance education is a thriving field, supported by the swift evolution and progress of technologies that promote access to and interaction with educational materials. The Technology, Education, and Copyright Harmonization Act of 2002 (“TEACH Act”), an amendment to Section 110 of U.S. Copyright Act, seeks to encourage these educational experiences by providing a specific carve out for distance education. The TEACH Act, codified in § 110(2), was signed into law and became effective on November 2, 2002 and amended existing copyright law to permit certain performances and displays of copyrighted materials in distance education settings.
A Brief History
In 1976, the time that the original language was enacted, § 110(2) provided an exemption for certain performances or displays of copyrighted works in the course of a transmission. At the time, a transmission referred to an instructional television or radio broadcast. With the expansion of digital technologies and development of distance learning, however, concerns arose over the adequacy of the existing copyright law in promoting digital distance education and protecting the rights of copyright owners. To address this concern, Section 403 of the Digital Millennium Copyright Act of 1998 (DMCA) required the Register of Copyrights to submit recommendations to Congress on “how to promote distance education through digital technologies, while maintaining an appropriate balance between the rights of copyright owners and the needs of users.” In their 1999 report “Report on Copyright and Digital Distance Education” the U.S. Copyright Office provided a number of recommendations after consultation with representatives of copyright owners, nonprofit educational institutions, and nonprofit libraries and archives. The original TEACH Act bill implemented a number of the recommendations set forth in the Copyright Office’s report.
Requirements of the TEACH Act
You must comply with a rather lengthy list of requirements in order to receive the protection the TEACH Act provides. To guide you through these various requirements, we have created a new handout: Using Materials in Distance Learning: A Guide to § 110(2) (TEACH Act).
In many ways the TEACH Act broadened the scope of § 110(2). Transmissions of works were no longer confined to physical classrooms, all type of works could now be performed or displayed (subject to certain limitations), and transmitting organizations were now permitted to reproduce copies of the works in order to perform or display them (again, subject to certain limitations). At the same time, the TEACH Act introduced additional institutional, teaching, and technology requirements to address concerns over how a work may be accessed and shared in a digital environment. All of the following requirements must be met:
□ General Scope:
The TEACH Act only applies to the performance and display of copyrighted works. It does not cover the remaining exclusive rights held by a copyright owner, including the rights of distribution or creation of a derivative work. Under § 112(f)(1), however, a work may be reproduced in order to be performed or displayed within the requirements of the TEACH Act. See our handout, Using Materials in Distance Learning: A Guide to § 110(2) (TEACH Act), to see under which conditions reproduction would be permissible.
The TEACH Act amended § 110(2) to expand the scope of works that may be performed or displayed. You are permitted to perform a full nondramatic literary or musical work or reasonable and limited portions of all other types of works. You are permitted to display any type of work so long as you do so in an amount comparable to what would be displayed in a traditional classroom setting.
Finally, all copies of works that are being performed or displayed must be lawfully made and acquired—illegally obtained copies are not permitted—and the copy performed or displayed cannot be a work that is produced or marketed primarily as eLearning or distance learning materials.
□ Institutional Requirements:
Eligible transmitting entities include government bodies and nonprofit educational institutions. Nonprofit educational institutions must be accredited. The institution must also provide a number of safeguards to counteract the risk of widespread dissemination of works. These safeguards include instituting policies regarding copyright, providing notice to students or recipients of the materials that the works may be subject to copyright protection, and providing copyright information to faculty, staff, and students to promote compliance with copyright law.
□ Teaching Requirements:
Performance or display of a work must be made by, at the direction of, or under the actual supervision of an instructor. The performance or display of the work must be made as an integral part of a classroom session offered as a regular part of systematic mediated instructional activity. In other words, an instructor must either initiate or actually supervise the performance or display, though real-time supervision is not required. Additionally, the performance or display must be an actual part of the class itself, not ancillary to the class, and it must be analogous to the type of performance or display that would take place in a live classroom setting. The performance must also be directly related and of material assistance to the teaching content. Works cannot be performed or displayed as unrelated background materials or simply for entertainment—they must be tied to the curriculum.
□ Technology Requirements:
At the time the law was being amended and distance education was gaining popularity, copyright owners were expressing their concerns over the ease of reproduction and dissemination of the works in a digital environment. Such activities, they argued, would have a large impact on their ability to license or otherwise exploit their rights as copyright owners. To address this concern, the TEACH Act imposes a number of technology requirements and limits the receipt of transmissions, to the extent technologically feasible, to students officially enrolled in the course or governmental employees as part of their official duties or employment.
In the case of digital transmissions, the transmitting body must apply technological measures to reasonably prevent retention of the copyrighted work beyond the duration of a particular class session and to reasonably prevent unauthorized further dissemination of the work. This may include performance or display via streaming services or limiting access though adoption of a closed content management system.
Finally, the TEACH Act supports the anti-circumvention language of the Digital Millennium Copyright Act and prevents a transmitting body from engaging in conduct that could reasonably be expected to interfere with technological protection measures that are already in place for copyrighted works.
What to Do if You Don’t Satisfy All Requirements
It may be the case that your intended use doesn’t satisfy all requirements of the TEACH Act. Maybe you would like to share materials to students beyond those officially enrolled in your class, or maybe you are performing or displaying materials through a service that does not allow for any sort of downstream control. In such situations, you may consider whether your intended use is likely to be considered a fair use. Fair use is a defense against a claim of copyright infringement and would allow you to perform or display the work without permission from the copyright owner. A fair use analysis is fact specific and should be considered for each individual piece of work you intend to perform or display.
You may also explore options for using alternative works that are in the public domain or available through more flexible open license terms. Works that are in the public domain are free to use without restriction. To use works available under an open license, you must comply with the license terms.
Finally, if you would like to use a particular work and you cannot rely on fair use, you may seek the permission from the copyright owner to use the work.
In summary, the TEACH Act was a result of years of discussion and debate between copyright owners and individual and institutional users of copyrighted content. The final product was a compromise designed to promote distance education through digital technologies, addressing the holes created through rapid growth of technology and proliferation of distance learning. Because of its many limitations and restrictions, the TEACH Act has been accused of being too narrow in applicability, prompting many instructors to rely instead on fair use or pursue licensing options. But for those transmitting bodies that meet all of its requirements, the TEACH Act serves as an important statutory exemption.
 Digital Millennium Copyright Act, Pub. L. 105-304, 112 Stat. 2860 (1998).
 Technology, Education and Copyright Harmonization Act of 2001, S. 487, 107th Cong. (2001).
By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries