New Law Expands "Fair Use" Options for Online Courses

Short Version:

An important change to "fair use" provisions of copyright law was made in 2002. The new provisions allow limited use of copyrighted material in online instruction under very specific circumstances and bring online instruction more inline with face-to-face instruction. Use of copyrighted material meeting fair use standards is permitted in those situations in which:

1) only students enrolled in a course are allowed access -- i.e., access must be restricted using technological means, and

2) access is limited to "the class session."

Extended Version:

In early November, 2002, President Bush signed into law the "Technology, Education and Copyright Harmonization" act (TEACH). This law allows the use of limited amounts of copyrighted content in distance education classes offered by accredited educational institutions. While some of the wording is less concrete than we would prefer, it is clear that some of the guidelines we offer in our previous writing would now be too conservative and limiting.

Previous position:

Our interpretation of copyright law was that "fair use" guidelines did not apply to Internet delivery of course content. For example, in instructor might scan a diagram from the textbook and include this image in a classroom PowerPoint presentation, but not make this same image available online during a weekly chat and "whiteboard" session with distance education students.

Revised position:

It appears the TEACH act would allow certain "fair use" practices permitted in face to face classrooms to also be used in online instruction.

Some of the details are important and some key expectations still require clarification. Here are some of the core issues as we understand them. Reference links appear at the end of this presentation.

1) This legislation applies to course instruction. It would apply to my use of content in a specific course I am now teaching, but not to resources I might create for the general public or in connection with commercial materials I might create.

2) This content is to be protected "to the extent technologically feasible." Clearly, this would require limiting access through password protection. I hope additional guidelines become available. For example, if I were to use a 30 second segment of jazz as part of history class, I could either make this content available as a "progressive download" or as "streaming media." The file associated with the progressive download could theoretically be retrieved from the browser "cache", but the streaming content would not be stored in a permanent form. Does this mean only streaming would be allowed? I understand that the law recognizes the equivalent storage of "images" in the cache, but to my knowledge there is no technological alternative for image files.

3) Content can be offered within the context of what is described as a "mediated instructional activity." This implies use of content is "controlled by or under the actual supervision of the instructor and analogous to the type of performance or display that would take place in a live classroom setting." This might cover hand outs, but clearly would exclude the type of material an instructor would put on library reserve for independent student study.

4) The part of the legislation I find most in need of clarification concerns the amount of time content is available. If I offer a face-to-face lecture from 2-3 on Wednesday, any "copyrighted content" I include is only available to students during that one hour time period. What is the equivalent time period for distance education? Content is not to be available on the system "for a longer period that is reasonably necessary to facilitate the transmission ….". This would seem to imply that the content is not to be offered to students for multiple accesses as might be the case in allowing access for the purposes of "presentation" and "review". It would also seem to imply a "group based" approach to instruction in which everyone progresses through the content together.

So, it is clear that the law now recognizes distance education and has taken steps to equate the opportunities of students involved in distance education courses. We assume further clarification of TEACH act expectations will soon be available.

American Library Association Summary

Georgia Harper Description of TEACH Act

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