TEACH Act

Citation: Technology, Education, and Copyright Harmonization (TEACH) Act of 2002, S. 487, incorporated into H.R. 2215 21st Century Department of Justice Appropriations Authorization Act (2002).

Educators are pretty good lobbyists &mdash; not for pay, but for other things that don’t cost governments money. Among the things that educators got from the federal

government, years ago, are exemptions from certain licensing requirements of the Copyright Act. Back in 1976, when the current Act was passed, Congress gave nonprofit educators the right to perform copyrighted works of all kinds in classrooms, and the right to transmit nondramatic literary and musical works to classrooms by closed-circuit TV, without any licenses whatsoever.

Today, closed-circuit TV is an old technology. Distant education is the latest rage, but it is be done over the Internet, not by television. As a result, the exemptions Congress gave educators in 1976 are not broad enough for the 21st Century.

Congress has amended the Copyright Act to permit nonprofit educational instructions to conduct distant education over the Internet, using copyrighted works of almost every kind, without licenses from copyright owners. The types of works educators may use in this way are no longer limited to nondramatic literary and musical works; they now include movies and music. And permissible transmissions no longer have to be received in classrooms; they can be sent to students wherever they may be, including libraries, dorms, homes and coffee shops.

These changes were accomplished in a bill called the “Technology, Education, and Copyright Harmonization Act of 2002” &mdash; an unwieldy moniker until you get to its acronym: the TEACH Act. (It amends Copyright Act §§110(2) and 112.)

The TEACH Act doesn’t permit educators to post whole books or movies to their websites. It merely permits them to use amounts that are “comparable” to those “typically displayed in a live classroom setting” for such things as books, or “reasonable and limited portions” of things like movies and music.

To be eligible for the exemption, the transmission must be part of a “mediated instructional activity” &mdash; the Act’s way of describing what would be a live classroom setting, in the old world of face-to-face education. This means that the Act doesn’t authorize educators to replace textbooks and coursepacks with unlicensed online materials. Also, while students may be located anywhere, they have to be enrolled in the course for which the materials were posted.

Congress recognized that online transmission of copyrighted works, done for any reason, increases the risk that those works will be used and even retransmitted for other reasons. So Congress enacted “safeguards” to protect against this danger. First, the TEACH Act requires educational institutions to “institute policies” designed to promote “compliance” with copyright law, and to inform faculty, students and staff concerning their copyright responsibilities. Of greater practical significance, educational institutions are required to use “technological measures” to prevent students from retaining transmitted works after class sessions end and to prevent students from retransmitting those works to others.

Of course, in order to transmit copyrighted works, they must be copied to server]s and temporarily stored in [[computers’ random access memories. And the TEACH Act contains provisions that specifically authorize both of these things.

Finally, Congress made it plain that the TEACH Act does not supercede or replace the fair use doctrine. This means that educational institutions that do some things the Act does not authorize are nevertheless permitted to claim that what they’ve done is separately permitted by the fair use doctrine.

The TEACH Act has a two limitations built into it. First, not every nonprofit educational institution will be able to take advantage of it. Recognizing that “nonprofit educational” status is not difficult to come by, the benefits of the Act are available only to nonprofit educational institutions that are “accredited” as well. Second, the Act does not permit the unlicensed transmission of two types of works: those that are created “primarily” to be used for Internet instruction; and “secure tests” (like the SAT).