Fair Use, Media and Education in the Digital Age

This week, I reviewed two articles on the TEACH Act: “New Copyright Law for Distance Education: The Meaning and Importance of the TEACH Act” (PDF) by Kenneth D. Crews and a background paper prepared by the Berkman Center for Internet & Society, titled “The TEACH Act: The Impact of Copyright and Compromise on Digital Distance Education.”

Building on my previous studies in fair use, copyright law and its relationship to educational use of copyrighted materials, these two readings were helpful towards understanding how copyright law contributes towards determining the boundaries of the classroom in the digital age. A key focus in this study.

The Berkman Center’s background paper provides a concise history and background on the TEACH Act, including how concerns of copyright holders and those of “universities, libraries and online learning institutions” helped shape the legislation that was signed into law by the President on November 2, 2002. Crews’ article explains that

The new law offers many improvements over the previous version of Section 110(2), but in order to enjoy its advantages, colleges, universities, and other qualified educational institutions will need to meet the law’s rigorous requirements.

Among these requirements, Crews’ later mentions that the law only applies to “a government body or an accredited nonprofit educational institution” and not to “many private entities–such as for-profit subsidiaries of nonprofit institutions.” That said, there are many other requirements that institutional policymakers, information technology officials and instructors need to follow in order to comply with the law. These requirements help shed light on the boundaries of the classroom in the digital age with regard to use of copyrighted materials.

Crews’ writes that among the “duties of information technology officials” it is important that copyrighted works are only to be made available under the following requirements:

• Limited access to enrolled students
• Technological controls on storage and dissemination
• (No) Interference with technological measures (meaning that an institution may not interfere with digital rights management codes embedded in digitally transmitted works, etc.)
• Limited temporary retention of copies
• Limited long-term retention of copies

Here we can begin to see that the classroom boundaries defined by the TEACH Act begin to look very similar to the boundaries of the physical classroom, except that they are extending into closed virtual spaces and for limited periods. For example, an additional requirement includes that any displays of copyrighted work must be, as Crews writes, “in an amount comparable to that which is typically displayed in the course of a live classroom.” While this does appear to balance concerns of copyright holders and educators, it uses language similar to the restricted physical space of classroom.

In the concluding section of Berkman Center’s paper, it explains

Yet whether the TEACH Act ultimately will achieve its goals–maintaining a balance between interests of copyright holders and educators, encouraging the expansion of digital distance learning while maintaining adequate provisions for the markets of copyrighted materials–has yet to be functionally assessed.

Crews’ paper concludes with a short list of alternative routes that might also be considered in striking a balance between interests of copyright holders and educators. Among those are

• Employing alternative methods for delivering materials to students, including the expansion of diverse library services, as noted above
• Securing permission from the copyright owners for the use of materials beyond the limits of the law
• Applying the law of fair use, which may allow uses beyond those detailed in the TEACH Act