US copyright law provides an exemption for the display or performance of copyrighted material in the classroom or its online analog (section 110, the "face to face teaching" exception and the TEACH Act).
Section 110 (1) allows instructors and students can perform or display a copyrighted work during face-to-face teaching at a nonprofit educational institution in a classroom or other place normally devoted to instruction. There are no restrictions on the type or length of work and the copyright owner's permission is not necessary.
Section 110 (2) allows the digital transmission of performances and displays of copyrighted works, without having to obtain prior permission from the copyright owner, as part of synchronous or asynchronous distance education, if the certain requirements are met. See the Teach Act Toolkit in the next section.
The following chart is a brief summary of the comparison between Sections 110 (1) and (2) (from Brigham Young University's Copyright 101 Tutorial).
|SECTIONS OF COPYRIGHT LAW, U.S. CODE 17|
|Face-to-Face: 110 (1)||Course Transmission: 110 (2)|
|Eligibility||Nonprofit, Educational||Accredited, Nonprofit, Educational, Governmental|
|Activity||Face-to-face teaching||Digital transmission controlled by, or under the actual supervision of the instructor;|
|Works Covered||All works||Nondramatic literary & musical works and limited portions of other works; display of all works|
|Limitations||Lawfully obtained copy; purpose is instructional not entertainment||Lawfully obtained copy; available to students no longer than class session; made by or under supervision of the instructor; display of work in an amount comparable to typical classroom setting.|
|Where||Classroom or similar place devoted to instruction||An integral part of a transmitted class session; part of systematic mediated instructional activity; directly related to the teaching content|
|Who||Students and teachers||Students and teachers|
1. Transmitting performances of all of a non-dramatic literary or musical work
Non-dramatic literary works as defined in the Act exclude audiovisual works; thus, examples of permitted performances in this category in which entire works may be displayed and performed might include a poetry or short story reading. Non-dramatic musical works would include all music other than opera, music videos (because they are audiovisual), and musicals.
2. Transmitting reasonable and limited portions of any other performance
This category includes all audiovisual works such as films and videos of all types, and any dramatic musical works excluded above.
3. Transmitting displays of any work in amounts comparable to typical face-to-face displays
This category would include still images of all kinds.
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 digital distance 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 they may have to post those materials, such as the fair use statute, or get permission.
In addition, the statute specifies a formidable list of circumstances under which the permitted institutions may make the
1. The performance or display must be:
a. A regular part of systematic mediated instructional activity;
b. Made by, at the direction of, or under the supervision of the instructor;
c. Directly related and of material assistance to the teaching content; and
d. For and technologically limited to students enrolled in the class.
2. The institution must:
a. Have policies and provide information about, and give notice that the materials used may be protected by, copyright;
b. Apply technological measures that reasonably prevent recipients from retaining the works beyond the class session and further distributing them; and
c. Not interfere with technological measures taken by copyright owners that prevent retention and distribution.
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 a digital 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:
1. Such copies are retained only by the institution and used only for the activities authorized by Section 110; and
2. For digitizing analog works, no digital version of the work is available free from technological protections that would prevent the uses authorized in Section 110.
Because of the many limitations, Section110(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 Section110(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.
My institution is a nonprofit accredited educational institution or a governmental agency
It has a policy on the use of copyrighted materials
It provides accurate information to faculty, students and staff about copyright
Its systems will not interfere with technological controls within the materials I want to use
The materials I want to use are specifically for students in my class
Only those students will have access to the materials
The materials will be provided at my direction during the relevant lesson
The materials are directly related and of material assistance to my teaching content
My class is part of the regular offerings of my institution
I will include a notice that the materials are protected by copyright
I will use technology that reasonably limits the students' ability to retain or further distribute the materials
I will make the materials available to the students only for a period of time that is relevant to the context of a class session
I will store the materials on a secure server and transmit them only as permitted by this law
I will not make any copies other than the one I need to make the transmission
The materials are of the proper type and amount the law authorizes:
Entire performances of nondramatic literary and musical works
Reasonable and limited parts of a dramatic literary, musical, or audiovisual works
Displays of other works, such as images, in amounts similar to typical displays in face-to-face teaching
The materials are not among those the law specifically excludes from its coverage:
Materials specifically marketed for classroom use for digital distance education
Copies I know or should know are illegal
Textbooks, coursepacks, electronic reserves and similar materials typically purchased individually by the
students for independent review outside the classroom or class session
If I am using an analog original, I checked before digitizing it to be sure:
I copied only the amount that I am authorized to transmit
There is no digital copy of the work available except with technological protections that prevent my using it for the
class in the way the statute authorizes.