TEACH Act

TEACH Act Frequently Asked Questions

General Overview of Copyright Law

When does copyright law first protect a work?

What are examples of work protected by copyright?

Is there anything not protected by copyright laws?

What happens if I violate copyright laws?

How have copyright laws traditionally protected the use of third-party copyrighted work?

What do "public domain" and “fair use” mean?

How much of a copyrighted _________ (film on DVD or VHS; video of television program, commercial, or news; CD or audiotape of musician or band; slide or photograph of artwork; images from books, i.e., photographs, diagrams, lithographs, etc.) can I digitize and use? How long may I use it?

When, where, and how should I seek copyright permission?

Overview of the TEACH Act and How It Applies at Prairie View

What is the TEACH Act?

Why was there a need for the TEACH Act?

How is the TEACH Act related to other copyright laws?

Would “fair use” materials fall under the TEACH Act?

What is the meaning of "class session" (the length of time one may use copyrighted material according to the TEACH Act)?

Does the TEACH Act only cover materials in courses taught for credit?

1.When does copyright law first protect a work?

The moment a work is recorded or fixed in a tangible medium, it becomes protected. When the words of a novel are typed or the notes of a concerto are scored, those works become copyrighted. This means that faculty will not lose rights to their own class notes or to any of their original materials.

2. What are examples of work protected by copyright?

              o Literary works
              o Musical works, including any accompanying words or libretto
              o Dramatic works, including any accompanying music
              o Pantomimes and choreographic works
              o Pictorial, graphic, and sculptural works
              o Motion pictures and audiovisual works
              o Sound recordings
              o Architectural works

3. Is there anything not protected by copyright laws?

Copyright does not protect procedures and processes, unexpressed ideas, methods of operation, concepts, principles, or discoveries which refer to historical and scientific facts.

4. What happens if I violate copyright laws?

First, it is important to understand that if any information copied and given to students violates copyright laws, then the instructor of the class is directly liable for the infringement and could face a lawsuit.

In his book Copyright Law on Campus, Mark Lindsey poses the following scenario: A copy center's employees make copies of a textbook as part of a course pack for a class, as per an order delivered by a professor's teaching assistant. Prior permission has not been acquired before the copying, and the textbook's publisher discovers the illegal copying.

So who is at fault? In the eyes of the legal system, the primary target in a lawsuit is the professor, followed by the teaching assistant and the copy center employees. This is called contributory infringement, as the professor, teaching assistant, and copy center employees knew about the infringement and chose to participate in the copying and distribution of the material anyway.

But the ripple effect of a copyright infringement lawsuit often reaches even further. People who were unaware of the offense, such as the copy center's owner and the university that employs the professor, could be held liable as well. This is known as vicarious infringement.

As was previously stated, the most important factor in dealing with copyright law and copyright infringement is often the material's value in the marketplace. In a lawsuit, the copyright holder may be awarded actual or statutory damages, to be paid by the defendant(s) - in this case, the professor, teaching assistants, and copy center employees - or the employers of the defendant(s) - the University and the copy center owner.

Actual damages usually refer to lost profits. But the copyright holder may elect to recover statutory damages - from $750 to $30,000 for each incident of infringement. If the copyright holder can prove that the infringement was committed "willfully," the court may order the defendant to pay up to $150,000 in addition to the statutory damages.

Even if the infringing parties prove that they were not aware that their acts were in violation of copyright laws, they can still be ordered to pay no less than $200 in statutory damages for each incident of infringement. Copyright infringement could be quite costly for all parties involved and is best avoided by acquiring proper permission. Faculty, staff, and students can (and do) get sued for copyright infringement. It's better to be safe than sorry - get permission.

5. How have copyright laws traditionally protected the use of third-party copyrighted work?

Traditionally, the use of a third-party copyrighted work in education was carried out in one of three ways:

o By obtaining permission from the rights holder
o By reliance on the “fair use” provisions of the Copyright Act (17 U.S.C. § 107)
o By use in class under the performance or display exemptions which exempts face-to-face classroom showings from public performance restrictions (17 U.S.C. § 110(2))

6. What do "public domain" and “fair use” mean?

"Public domain" refers to works that are available for unrestricted copying by the general public without prior permission. Material that resides in the public domain includes works whose copyrights have expired; works that were created too early to have copyright protection; works by the federal government; and works donated to the public by authors or artists.

Copyright laws apply to material created on or after January 1, 1978. Copyright terms last the duration of the life of the work's creator plus 70 years, after which they become public domain and do not require permission for use. Anything published prior to 1923 is public domain and is free to be duplicated by anyone at any time. Works published prior to 1978 without a copyright notice are also in the public domain. While materials published by the United States federal government are considered public domain, works created by state and local governments are not. For a comprehensive list of copyright terms for the United States in an easy-to-understand chart, please visit “Copyright Term and Public Domain in the United States” at Cornell University’s Web site. http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm

"Fair use" allows a person to copy limited amounts of copyrighted material without requiring prior permission. Four factors must be evaluated to determine whether use is "fair" or not:

o The purpose and character of the use (most importantly whether it is for commercial gain or for nonprofit educational purposes)
o The nature of the copyrighted work (how creative or non-creative is the work)
o The amount and substantiality of the portion used in relation to the work as a whole
o The effect of the use upon the potential market for or value of the copyrighted work

Fair use is complicated, to say the least. There are no specific rules that strictly define how much of a work is an acceptable amount to use. In regards to classroom settings, the fourth factor - effect on the potential market - is considered most important in determining fair use. If there is potential for a copy to endanger or undermine the market value of the original, this factor weighs against fair use.

When in doubt, seek permission. The following checklist is a great resource to help you decide whether you need to seek permission: http://www.copyright.iupui.edu/checklist.htm. Stanford University's Web site on fair use is also an excellent resource: http://fairuse.stanford.edu.

7. How much of a copyrighted _________ (film on DVD or VHS; video of television program, commercial, or news; CD or audiotape of musician or band; slide or photograph of artwork; images from books, i.e., photographs, diagrams, lithographs, etc.) can I digitize and use? How long may I use it?

This goes back to the fair use conundrum: there is no numerical amount that has been deemed acceptable, and no amount that has been deemed too much. It is safe to say that copying an entire work, or copying the "heart" of the work likely weighs against fair use. If one factor weighs against fair use, then the other three factors listed above should weigh in favor of it to legitimize the use of the material.

If use of the work falls within the performance and display exemption, then there is no limit on the use of the material in a traditional face-to-face teaching activity as long as the work being displayed or performed is a legal copy, such as a DVD purchased at a store.

If the material is being used for on-line instruction the rules are a bit more complex. You may transmit video or audio of all of a non-dramatic literary work, such as a poetry or short story reading. You may also transmit a complete recording or video of a non-dramatic musical work. For all dramatic literary and musical performances (including opera, music videos, and musicals) you are limited to transmitting reasonable and limited portions. To determine what is a reasonable portion, you will need to refer back to the rules for fair use.

8. When, where, and how should I seek copyright permission?

Unless you encounter a work that is clearly a part of the public domain, or find a work with a conspicuous statement by its creator stating that the work is free for public copying, or the use of the work falls under the TEACH Act exemption, copyright permission should be sought.

There are specific places to look for obtaining copyright permission. The Copyright Management Center (CMC) of Indiana and Purdue Universities has a comprehensive list of places to check to secure permission.

It is helpful to have the following information prior to seeking permission, most of which may be found on a printed work's copyright notice page: title, author, date or edition, portion of the work you wish to use, and the ISBN, ISSN, or LCCN number. Another requirement is the use of a mandatory credit line, which cites the author and the original copyright date, and includes the word "copyright" or the © symbol. Permission is typically given within 24 hours.

Overview of the TEACH Act and How It Applies at Prairie View

9. What is the TEACH Act?

Increasingly, faculty and students are developing and promoting electronic or online resources for use in connection with their courses or coursework. This trend raises questions concerning how to take educational uses of copyrighted materials in traditional classroom settings and apply them to a digital environment. To answer these questions, the Technology, Education, and Copyright Harmonization Act (TEACH Act) was signed into law in 2002. It clarifies the terms and conditions under which accredited, nonprofit U.S. educational institutions may use copyright-protected materials for organized instructional activities that are not in face-to-face traditional classroom settings.

The TEACH Act updates the copyright law pertaining to transmissions of performances and displays of copyrighted materials. It also provides the guidelines that Penn State faculty, staff, and students must follow when using copyrighted materials in digital or electronic format in non face-to-face instructional situations. The text of the TEACH Act can be found in its entirety at: http://www.copyright.gov/legislation/pl107-273.html#13301.

10. Why was there a need for the TEACH Act?

The existing copyright laws and “fair use” guidelines were written specifically for traditional classroom settings. An electronic “classroom” such as an online course is not a traditional classroom setting.

The TEACH Act revises the performance and display exemptions by updating and expanding them to apply in the digital environment. These revisions specifically provide, under certain restrictions and subject to specified conditions, for the use of copyrighted materials in the digital educational environment without having to obtain permission of the copyright holder.

11. How is the TEACH Act related to other copyright laws?

It is important to understand that the TEACH Act serves as an extension of existing copyright laws. The TEACH Act covers additional situations that may occur in the digital environment but not in the face-to-face classroom.

12. Would “fair use” materials fall under the TEACH Act?

No, the TEACH Act is not an application of “fair use” with its restrictions on any continued reuse of the same materials. Instead, it is a version of the exemption for public performance in the classroom.

13. What is the meaning of "class session" (the length of time one may use copyrighted material according to the TEACH Act)?

The TEACH Act applies to any digital transmission as part of an instructional program, such as a video uploaded in ANGEL. It does not specifically define the meaning of a class session, but it is understood to be comparable to a "live" class period in which displays and performances may occur. As these displays and performances may occur repeatedly and for various lengths of time in a "live" classroom, it is understood that the occurrence and duration of such uses of copyrighted materials may also vary during distance learning.

While TEACH Act legislation does not explicitly define "class session," it states that displays and performances of copyrighted materials should be accessible only to enrolled students and only for the necessary length of time. This timeframe is left up to the discretion of the course instructor. It also suggests that the term “class session” should be given a relatively broad meaning and allow for repeated access to the materials during the term of the student’s enrollment in the class.

14. Does the TEACH Act only cover materials in courses taught for credit?

The application of the TEACH Act does not have to be restricted to coursework completed for credit. It can also include other types of instruction as long as access is limited to participants with an “enrolled” status.