Exception 7: Digitizing Class Materials
TEACH Act
(2) except with respect to a work produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks, or a performance or display that is given by means of a copy or phonorecord that is not lawfully made and acquired under this title, and the… accredited nonprofit educational institution knew or had reason to believe was not lawfully made and acquired, the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission, if--
(A) the performance or display is made by, at the direction of, or under the actual supervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of… an accredited nonprofit educational institution;
(B) the performance or display is directly related and of material assistance to the teaching content of the transmission;
(C) the transmission is made solely for, and, to the extent technologically feasible, the reception of such transmission is limited to—‘‘(i) students officially enrolled in the course for which the transmission is made; …
(D) the transmitting… institution--(i) institutes policies regarding copyright, provides informational materials to faculty, students, and relevant staff members that accurately describe, and promote compliance with, the laws of the United States relating to copyright, and provides notice to students that materials used in connection with the course may be subject to copyright protection; and (ii) in the case of digital transmissions—(I) applies technological measures that reasonably prevent—(aa) retention of the work in accessible form by recipients of the transmission from the transmitting body or institution for longer than the class session; and (bb) unauthorized further dissemination of the work in accessible form by such recipients to others; and (II) does not engage in conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent such retention or unauthorized further dissemination;’’; and (2) by adding at the end the following: …
(c) EPHEMERAL RECORDINGS.--
(1) … (f)(1) Notwithstanding the provisions of section 106, and without limiting the application of subsection (b), it is not an infringement of copyright for a… nonprofit educational institution entitled under section 110(2) to transmit a performance or display to make copies or phonorecords of a work that is in digital form and, solely to the extent permitted in paragraph (2), of a work that is in analog form, embodying the performance or display to be used for making transmissions authorized under section 110(2), if--
(A) such copies or phonorecords are retained and used solely by the… institution that made them, and no further copies or phonorecords are reproduced from them, except as authorized under section 110(2); and
(B) such copies or phonorecords are used solely for transmissions authorized under section 110(2).
(2) This subsection does not authorize the conversion of print or other analog versions of works into digital formats, except that such conversion is permitted hereunder, only with respect to the amount of such works authorized to be performed or displayed under section 110(2), if--
(A) no digital version of the work is available to the institution; or
(B) the digital version of the work that is available to the institution is subject to technological protection measures that prevent its use for section 110(2).’’. (US Congress, 2001)
The TEACH Act allows teachers of accredited institutions to digitize copyrighted class materials, either for face-to-face or distance classrooms, without permission under certain conditions. These works must be legally acquired, pertinent to the teaching goals, used in reasonable proportions, and fit into a live classroom session (which is rather vague).
There are some important restrictions. First, only enrolled students may access these works, so the library should use passwords and encryption. Second, these students cannot make the works available to others, so the library should also use digital watermarks. Third, access must only be available during the period of the course, so access should be given through a course website, for instance. If possible, said Russell (2004), make materials retrievable under the course number or professor´s name. Libraries must include a notice of copyright protection, if applicable.
Repeated use is not forbidden, but the libraries can only digitize materials upon request of a teacher to meet specific course-related goals (Russell, 2004). Also, digital copies can be archived for future use if their access is blocked until they are needed. If the work is digital and doesn´t allow for a copy to be made for classroom use, a teacher may digitize an analog version, according to Section 112. However, the Digital Millennium Copyright Act makes it illegal to circumvent the copyright protection on a digital item, such as a Digital Rights Management system (DRM).
An important last consideration is to be aware of where and when the copyrighted information will be used: in the classroom is okay but not without the teacher, such as for homework. Nevertheless, the ALA (2009) warned that the TEACH Act “would allow a student to display in class a multimedia presentation including film clips, it would not permit the student to post the presentation to a website.”
(2) except with respect to a work produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks, or a performance or display that is given by means of a copy or phonorecord that is not lawfully made and acquired under this title, and the… accredited nonprofit educational institution knew or had reason to believe was not lawfully made and acquired, the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission, if--
(A) the performance or display is made by, at the direction of, or under the actual supervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of… an accredited nonprofit educational institution;
(B) the performance or display is directly related and of material assistance to the teaching content of the transmission;
(C) the transmission is made solely for, and, to the extent technologically feasible, the reception of such transmission is limited to—‘‘(i) students officially enrolled in the course for which the transmission is made; …
(D) the transmitting… institution--(i) institutes policies regarding copyright, provides informational materials to faculty, students, and relevant staff members that accurately describe, and promote compliance with, the laws of the United States relating to copyright, and provides notice to students that materials used in connection with the course may be subject to copyright protection; and (ii) in the case of digital transmissions—(I) applies technological measures that reasonably prevent—(aa) retention of the work in accessible form by recipients of the transmission from the transmitting body or institution for longer than the class session; and (bb) unauthorized further dissemination of the work in accessible form by such recipients to others; and (II) does not engage in conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent such retention or unauthorized further dissemination;’’; and (2) by adding at the end the following: …
(c) EPHEMERAL RECORDINGS.--
(1) … (f)(1) Notwithstanding the provisions of section 106, and without limiting the application of subsection (b), it is not an infringement of copyright for a… nonprofit educational institution entitled under section 110(2) to transmit a performance or display to make copies or phonorecords of a work that is in digital form and, solely to the extent permitted in paragraph (2), of a work that is in analog form, embodying the performance or display to be used for making transmissions authorized under section 110(2), if--
(A) such copies or phonorecords are retained and used solely by the… institution that made them, and no further copies or phonorecords are reproduced from them, except as authorized under section 110(2); and
(B) such copies or phonorecords are used solely for transmissions authorized under section 110(2).
(2) This subsection does not authorize the conversion of print or other analog versions of works into digital formats, except that such conversion is permitted hereunder, only with respect to the amount of such works authorized to be performed or displayed under section 110(2), if--
(A) no digital version of the work is available to the institution; or
(B) the digital version of the work that is available to the institution is subject to technological protection measures that prevent its use for section 110(2).’’. (US Congress, 2001)
The TEACH Act allows teachers of accredited institutions to digitize copyrighted class materials, either for face-to-face or distance classrooms, without permission under certain conditions. These works must be legally acquired, pertinent to the teaching goals, used in reasonable proportions, and fit into a live classroom session (which is rather vague).
There are some important restrictions. First, only enrolled students may access these works, so the library should use passwords and encryption. Second, these students cannot make the works available to others, so the library should also use digital watermarks. Third, access must only be available during the period of the course, so access should be given through a course website, for instance. If possible, said Russell (2004), make materials retrievable under the course number or professor´s name. Libraries must include a notice of copyright protection, if applicable.
Repeated use is not forbidden, but the libraries can only digitize materials upon request of a teacher to meet specific course-related goals (Russell, 2004). Also, digital copies can be archived for future use if their access is blocked until they are needed. If the work is digital and doesn´t allow for a copy to be made for classroom use, a teacher may digitize an analog version, according to Section 112. However, the Digital Millennium Copyright Act makes it illegal to circumvent the copyright protection on a digital item, such as a Digital Rights Management system (DRM).
An important last consideration is to be aware of where and when the copyrighted information will be used: in the classroom is okay but not without the teacher, such as for homework. Nevertheless, the ALA (2009) warned that the TEACH Act “would allow a student to display in class a multimedia presentation including film clips, it would not permit the student to post the presentation to a website.”