Copyright law provides educators with a separate set of rights in addition to fair use, to display (show) and perform (show or play) others' works in the classroom. These rights are in Section 110(1) of the Copyright Act and apply to any work, regardless of the medium.
The TEACH Act of 2002, expanded the scope of online educators' rights to perform and display works and to make copies integral to such performances and displays, making the rights closer to those we have in face-to-face teaching. But there is still a considerable gap between what the statute authorizes for face-to-face teaching and for online education. For example, as indicated above, an educator may show or perform any work related to the curriculum, regardless of the medium, in face-to-face classroom instruction. There are no limits and no permissions required. Under 110(2), however, even as revised and expanded by the TEACH Act, the same educator would have to pare down some of those materials to show them to online students. The audiovisual works and dramatic musical works may only be shown as clips -- "reasonable and limited portions".
This disparity, coupled with the considerable number of additional limits and conditions imposed by the statute, has lead some educators to conclude that it's more trouble than it's worth to rely on Section 110(2). The statute's complexity provides a new context within which to think about fair use: compared to the many conditions and limits contained in Section 110(2), the four factor fair use test seems simple and elegant. That's a good thing, because even if we rely on and find 110(2) helpful, fair use will still figure heavily in our exercise of performance rights because putting anything online requires making a copy of it. The TEACH Act authorizes us to digitize works for use in online education, but only to the extent we are authorized to use those works in Section 110(2), and so long as they are not available digitally in a format free from technological protection. Fair use is almost always going to be the best source of authority for making copies in any context, but especially in conjunction with statutes like 110(2) that give us specific authorization that may not be sufficient in a particular case.
Fair use also remains important because the in-classroom activities (even if the classroom is virtual) the TEACH Act authorizes are a small subset of the uses of online resources educators may wish to make. It only covers in class performances and displays, not, for example, supplemental online reading, viewing, or listening materials. For those activities, as well as many others, we'll need to continue to rely on fair use. Remember, however, when relying on fair use, the fair use test is sensitive to harm to markets. This means that in general, where there is an established market for permissions, there will often be a narrower scope for fair use, and our reliance on fair use should be limited. On the other hand, where it's near impossible to get permission, for example, for music and movies where those industries are not yet very responsive to the needs of online educators, the scope of fair use expands to permit reasonable uses of such materials for both in person and online students. So, fair use will likely be very helpful for using music and movies in the classroom and as supplementary materials.
Section 110's role in the balance of interests has always been to permit educators to share works with their students and to show others' works in class. However, Section 110(2) significantly limits who may display and perform materials and under what circumstances, including how much they may use. The TEACH Act checklist, summarizes the 22 (!) prerequisites. Nevertheless, we may be optimistic that, together with fair use, this statute will achieve Congress' goal of facilitating online education.
Section 110(2)'s rights:
Exclusions from coverage
Not everyone, nor every work, is covered. Section 110(2) only applies to accredited nonprofit educational institutions. The rights granted do not extend to the use of works primarily produced or marketed for in-class use in the online education market; works the instructor knows or has reason to believe were not lawfully made or acquired; or textbooks, coursepacks and other materials typically purchased by students individually.
This last exclusion results from the definition of "mediated instructional activities," a key concept within the expanded Section 110(2) meant to limit it to the kinds of materials an instructor would actually incorporate into a class-time lecture. In other words, the TEACH Act covers works an instructor would show or play during class such as movie or music clips, images of artworks in an art history class, or a poetry reading. It does not cover materials an instructor may want students to study, read, listen to or watch on their own time outside of class. Instructors will have to rely on other rights to post those materials, such as the fair use statute, or get permission.
Conditions:
Authority to make copies:
Finally, a new section was added to the Copyright Act to authorize educators to make the copies necessary to display and perform works in an online environment. New Section 112(f) (ephemeral recordings) works with Section 110 to permit those authorized to perform and display works under 110 to copy digital works and digitize analog works in order to make authorized displays and performances so long as:
Because of the many limitations, Section 110(2) won't go far enough in many situations; remember that educators still have recourse to fair use to make copies, create derivative works, display and perform works publicly and distribute them to students. So, don't be discouraged by Section 110(2)'s scope and complexity. If it covers what you want to do and you and your institution can comply with all of its conditions and limitations, great! If it does not, you still have the fair use statute.
The contents of this page are the work of Georgia Harper and are licensed under a Creative Commons Attribution 4.0 International License.
Harper, Georgia. (29 August 2023). Copyright Crash Course. http://doi.org/10.15781/T24J09X6J
