TEACH Act Frequently Asked Questions

General Overview of Copyright Law

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?

Copyright laws state that the following are examples of protected works:

Literary works

Musical works, including any accompanying words or libretto

Dramatic works, including any accompanying music

Pantomimes and choreographic works

Pictorial, graphic, and sculptural works

Motion pictures and audiovisual works

Sound recordings

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:

By obtaining permission from the rights holder

By reliance on the “fair use” provisions of the Copyright Act (17 U.S.C. § 107)

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:

The purpose and character of the use (most importantly whether it is for commercial gain or for nonprofit educational purposes)

The nature of the copyrighted work (how creative or non-creative is the work)

The amount and substantiality of the portion used in relation to the work as a whole

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.

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. You can visit the Web site at http://www.copyright.iupui.edu/permhome.htm.

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 Penn State

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.

15. How will the TEACH Act affect library reserve readings and e-reserves?

The TEACH Act has no effect on e-reserves. The Libraries will continue to provide this valuable service (http://www.libraries.psu.edu/tas/reserve/default.htm) and will fully respect the conditions required by copyright law (http://www.libraries.psu.edu/tas/reserve/copyright.htm). The University Copyright Clearance office continues to handle copyright clearance for course packets (http://www.multimediaprint.psu.edu/copyright/).

16. What if I want to use materials in multiple online courses or over a period of several semesters? Can I still use e-reserves?

Yes, e-reserves can still be used (http://www.libraries.psu.edu/tas/reserve/default.htm). However, a specific e-reserve for materials limited to reuse in TEACH Act applications should be created. To qualify for TEACH Act use, the use must be similar to a display in a classroom setting (i.e., part of an instructional activity as opposed to reference materials). This would mean no items that would fall under a “fair use” application should be in this e-reserve. The reason for this is that TEACH Act materials mostly do not fall under “fair use” application, but are more an extension of the display and performance exemption. Therefore, reuse of embedded copyright materials in course content over time would not require authorization or payment of royalties over time.

17. How many times may I use copyrighted materials covered by the TEACH Act before I have to request permission from the copyright owner?

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 rules. Just as the public performance exemption does not require that a professor (or institution) destroy the slides made for presentation in class (or copies of movies or other content made for display in class), the TEACH Act also does not require such an action.

Thus, in view of how the underlying public performance in a classroom exemption is applied, it is permissible to retain a digital e-archive of TEACH Act materials which can be reused in TEACH Act applications indefinitely without need for authorization or payment of royalties. Of course, these provisions apply only if the digital copies are made from a legally obtained copy of the work, such as a DVD owned by a faculty member. This would naturally exclude rented videos, or a video file illegally downloaded off a peer-to-peer site.

It is important to note that these e-archives or e-reserves specifically of works covered by the TEACH Act are entirely different from any e-library reserves or reserves of "fair use" materials. For TEACH Act qualifying uses, reuse is not an issue. To determine whether retention and reuse is allowable, therefore, requires an accurate identification of which category of copyright exemption a use falls under. To qualify for TEACH Act use, the use must be analogous to a display in a classroom setting (i.e. an involved part of the instructional activity as opposed to mere reference material).

Materials offered through e-reserves for the same course over a number of semesters or years, is most likely not a TEACH Act application [i.e. more likely reference materials than materials integral to actual instructional activities {display or performance uses}]. Therefore, these materials would more likely fall within "fair use" analysis and traditional analysis of Library Reserve materials.

Embedding copyrighted materials in course content which would be re-used in the same course over time would be more likely to arise in a TEACH Act application where the copyrighted material is embedded in the actual instructional activities. This would be similar to showing the same video clip to every Film 101 class during class for discussion and instructional purposes.

To summarize, if the uses are TEACH Act qualifying uses (meeting those restrictions specified within the TEACH Act text) then no authorization or royalties are necessary regardless of the number of times the materials are reused or the span between such uses. If the material is "fair use" dependent, then reuse by the same instructor in the same or a similar course would likely trigger a need for authorization and royalties.

18. Does using material in a homework exercise count as a mediated instructional activity or does that only include in-class assignments?

Although still somewhat ambiguous, the phrase "mediated instructional activities" from paragraph (2) of the TEACH Act is defined as activities that use works that are permitted:

as an integral part of the class experience,

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.

In addition, the material must be used as part of the course rather than as supplementary materials (e.g. textbooks and course pack materials). Guidelines provided by the American Library Association clarify that the purpose of this language is to prevent the electronic distribution of materials that are specifically created for student use outside the classroom, thus infringing upon the potential market value of the work. The quantity of materials which may be copied or scanned should be consistent with what would be presented in the classroom setting.

For instance, the TEACH Act would provide for a homework assignment that included the repeated display of unlimited numbers of digital photographs if used as part of an instructional discussion (i.e. integral to a class presentation). This is because such use is a parallel to the allowed use in class of an unlimited number of photographs as part of the discussion. In this example, the use would be permissible under the TEACH Act because the intended use is a digital replacement or substitute for an in-class display or presentation.

However, the TEACH Act would not provide for the repeated, unlimited use of an unlimited number of photographs where such use is not part of an actual mediated instructional event (i.e. a required “course pack” used as supplemental information). For this use of the materials, the instructor would need to arrange for e-reserves through the library.

19.How can I meet the TEACH Act requirement of preventing my students from downloading copyrighted materials such as an image of an artist or photographer’s work and redistributing it without permission?

The TEACH Act is quite clear that reasonable efforts must be made to prevent retention and dissemination of copyrighted works displayed electronically during the course of instruction.

For example, a visual arts professor teaching an online photography course might have an assignment about the challenges of shooting outdoor photographs in snow. The professor wants to upload into ANGEL several snow scene photographs that are copyrighted by a professional nature photographer.

Under the performance and display exemption of the TEACH Act, this would be permissible if the professor takes reasonable steps to ensure the students couldn’t then copy and distribute the images without the copyright holder’s permission. The professor would also need to own a legal copy of the prints, and inform the students that the prints are copyrighted.

Reasonable measures available to the professor to limit the value or use of such downloaded/printed copies include:

watermarking the image so printed or online versions have a copyright or other mark,

restricting print capabilities (this would include removing a print option entirely),

preventing the ability to copy and paste an image onto another Web site,

and/or the use of low-quality, low-resolution images that would not look good in a printed form.

If you are not sure how to carry out these measures, you can contact the Faculty Multimedia Center for advice at fmc@psu.edu or 814-863-7051.

Additional measures include using the © symbol followed by the name of the copyright holder. Depending on the kind of material, using language like: "The following articles are reprinted with permission granted by the Copyright Clearance Center" or "The following articles are reprinted with permission granted by the author(s) and/or publisher(s)" would also be advisable.

20. How would I communicate copyright restriction language to students?

The following language, which appears on all e-reserve postings, is an example of wording that could be used to make students aware of possible copyright restrictions on materials posted to a Web site or in ANGEL:

“This material is presented for use solely by enrolled members of this course. Further reproduction or distribution of this material is expressly prohibited. This material may be made available on alternative media upon request.”

Northwestern University uses the following language on the home page of their course management system:

“Some of the materials on this site are subject to copyright and may NOT be distributed beyond members enrolled in classes served by this course management system. Students' use of these materials is limited to the term in which a course is taught.”

Another example of copyright restriction language is used by Indian Hills Community College in Centerville, IA:

“Online coursework may contain material used in compliance with U.S. Copyright Law. Under the law, materials may not be downloaded, saved, revised, copied, or distributed without permission. These materials are to be used for course instruction only, and are limited to the duration of this course. You may only download or print materials at the direction of your course instructor.”

21. Where do I check to find already digitized materials?

There is no central source of information about which materials (e.g., books, movies, music, photographs, etc.) have been digitized. For “fair use” situations, it makes sense to seek permission from the copyright holder. At Penn State, the Copyright Clearance Office (http://www.multimediaprint.psu.edu/copyright/) can help with your course packet needs. Another useful resource, the Copyright Management Center at IUPUI, has useful information on how to obtain permission to use various kinds of materials (http://www.copyright.iupui.edu/permorg.htm).

If use of the materials falls under the performance and display exception and no digital version exists, a digital copy may be made from a legally owned print or analog copy of the work.

22. How does the streaming video and audio server offered by Penn State protect files as defined by the TEACH Act?

Faculty who want to make digital video and audio files available to their resident education course students have the option of having files streamed from the Penn State Streaming Server (http://its.psu.edu/streaming). Streamed video and audio is a more secure way to share digital video files with course members, as it is not necessary to download the actual source file. Authentication is required prior to viewing, with access restricted to just students enrolled in a course. This authentication process meets TEACH Act requirements for a secure server.

Faculty may request an account by sending e-mail to streaming@psu.edu. After receiving account information, faculty can upload compressed video and audio to the server and set permissions for who may view the files. More information on preparing your file for streaming is available at http://tlt.its.psu.edu/streaming/procedure.html. Faculty who do not have the equipment to digitize and compress a file into the QuickTime format, or who need additional help with digitizing and compressing files, may make an appointment with staff in the Faculty Multimedia Center: http://tlt.its.psu.edu/fmc/.

If the portion of the copyrighted video or audio file is longer than a brief segment that would be covered by fair use, and the use of the file isn’t covered by the performance and display exemption of the TEACH Act, faculty should secure permission to use the work in a digital format. For help in securing permissions, the IUPUI Web site has very helpful advice: http://www.copyright.iupui.edu/permsec.htm.

23. How can ANGEL and other technology available at Penn State help with compliance with the requirement of preventing students from downloading copyrighted materials?

Currently, many different types of technology are used at Penn State that can help faculty comply with the requirements of the TEACH Act. Some of these technologies include the use of password-protected access, personal identification numbers (PINs), and streaming video and audio data to prevent unauthorized storage, copying, and distribution of material.

ANGEL is a convenient way for faculty to limit access to copyrighted material. Students must gain access to their respective courses in ANGEL by logging in with their Penn State user ID and password. Only students who are officially registered for a class are able to access that class's course materials in ANGEL. Faculty have control over who sees the material and when

Faculty who are not using ANGEL are still obligated to password-protect copyrighted materials on the Web sites that they create for their courses and then only give the password to currently enrolled students.

24. How do I determine if I need to ask permission to use specific copyrighted materials in my course?

In general, the evaluation of the use of the copyrighted work of another as part of the educational process should be done in accordance with the following tiered analysis:

Determine if the material is indeed copyrighted, as not all materials are copyrighted. Works in the public domain and certain other works may be used without any copyright analysis. Faculty and students can find a variety of copyright determination tools at: http://its.psu.edu/policies/.

If the work is copyright-protected, next determine if the intended use can be qualified as “fair use” under the Copyright Act. More information that will assist you in determining “fair use” can be found at the following link, under the section titled “Sec. 107. Limitations on exclusive rights: Fair use”: http://www.libraries.psu.edu/tas/reserve/copyright.htm#sec107.

Then determine if the intended use of the materials in question qualify under performance and display exemptions (for in-class presentations) or under the TEACH Act for digital transmissions.

In the event that the work is copyrighted and the intended use does not appear to fall within the acceptable use provisions of either “fair use,” or the performance and display exemptions, or the TEACH Act, the use will require the permission of the copyright holder (“Copyright Clearance”). In this event, considerable time may be required and a fee for use may be incurred.

In addition to the information available at the Penn State TEACH Act site, several other institutions have developed significant materials relating to Copyright and the TEACH Act. In particular, North Carolina State University TEACH ACT toolkit (http://www.lib.ncsu.edu/scc/legislative/teachkit/act_text3.html) provides additional, in-depth information on the TEACH Act.

25. What if I have any additional questions?

Additional questions on the TEACH Act can be directed to teachact@psu.edu.