Copyright Issues in Teaching with Technology

Distance Education
Section 110 extended certain provisions of the face-to-face teaching exemption to instruction delivered by transmission to remote locations, including college credit courses. Allowable activities included performances of non-dramatic musical and literary works and the display of photographs, illustrations, maps and other printed materials, still images from videotapes, and 35mm slides as long as they are not shown in sequence from a copyrighted program.

The law specifically excluded the performance of dramatic works and the display of audiovisual materials, defined in the law as works that consist of a series of related images intended to be shown by the use of machines. Thus, according to the original 1976 copyright law, a course that was “transmitted” could not include a videotape or videodisc, or consecutive images from a photographic series without permission. The frame of reference at that time was television-based distance education, but the same concepts applied to web-based instruction. Obviously, this restriction was problematic for faculty who used video and other media materials in their conventional classroom teaching, that they wished to continue to use in their online courses.

This situation has since been relieved, thanks to probably the two most significant revisions to the copyright law for educators, the Digital Millennium Copyright Act of 1998 (the link is to a PDF document) and the Technology, Education, and Copyright Harmonization Act (also a PDF) of 2002 (known as the “TEACH Act”). The TEACH Act in particular was a long anticipated blessing for distance educators, because it revised Section 110 and loosened the restrictions. However, strings were attached. The changes provided by the TEACH Act do not apply unless certain institutional requirements are met. These new requirements include the following:

• The provisions only apply to accredited non-profit educational institutions, such as Dakota Wesleyan.
• The educational organization must have a published policy regarding teacher use of copyrighted materials, and an ongoing copyright training program for faculty, staff, and students in place. DWU does have a copyright policy in place, and this publication and web site are essential components of the training program.

Other requirements of the Act relate to faculty use of the materials and the materials themselves.

• Access to the digitized materials must be restricted to students enrolled in the course.
• The digitized materials must be used in the same manner in an online course as they would be in a face-to-face (F2F) course. For example, if a videotape segment would have been displayed by the teacher in the F2F setting, it may be digitized for the online course. If students would have viewed the tape independently in a learning resources center instead of the face-to-face classroom, the TEACH Act would not apply. Moreover, the digital materials must only be available to the students during approximately the same time period in which they would be available to a F2F class.
• In the case of a videotape, only the essential portions that the teacher would display in the F2F classroom may be digitized for online instruction. In many cases, that would not be an entire tape.
• The materials must have been lawfully acquired.
• The students must be notified of the relevant copyright information for the materials and that the materials are protected by copyright law.
• The materials may be digitized for online use only if digital versions are not already available.

If these provisions are met, the TEACH Act has opened the door to a much wider range of instructional technologies in distance education than were permitted by the old Section 110. Online courses may now permit performances of nondramatic literary and musical works and “reasonable and limited portions” of dramatic and audiovisual works, including video. The Act also eliminated the requirement that students receiving the instruction be located in a classroom or other site devoted to instruction. In other words, students at home now are eligible.

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