Almost all intellectual property and copyright lawyers agree that all requirements of the TEACH Act must be complied with prior to the use any individual work.
The TEACH Act has many requirements:
1. Instructor Responsibilities
The work to be transmitted may be any of the following:
a. a performance of a non-dramatic literary work; or
b. a performance of a non-dramatic musical work; or
c. a performance of any other work, including dramatic works and audiovisual works, but only in reasonable and limited portions; or
d. a display of any work in an amount comparable to that which is typically displayed in the course of a live classroom session
2. The work to be transmitted may not be any of the following:
a. marketed primarily for performance or display as part of a digitally transmitted mediated instructional activity; or
b. a textbook, course pack, or other material in any media which is typically purchased or acquired by students for their independent use and retention.
3. Any permitted performance or display must be both:
a. 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 the educational institution; and
b. Directly related and of material assistance to the teaching content of the transmission.
4. The institution does not know or have reason to believe that the copy of the work to be transmitted was not lawfully made or acquired.
5. If the work to be used has to be converted from print or another analog version to digital format, then both:
a. The amount of the work converted is no greater than the amount that can lawfully be used for the course; and
b. There is no digital version of the work available to the institution or the digital version available to the institution has technological protection that prevents its lawful use for the course.
6. The institution for which the work is transmitted is an accredited nonprofit educational institution.
7. The institution has instituted policies regarding copyright.
8. The institution has provided information materials to faculty, students, and relevant staff members that describes and promote compliance with U.S. copyright laws.
9. The institution has provided notice to students that materials used in connection with the course may be subject to copyright protection.
10. The transmission of the content is made solely for students officially enrolled in the course for which the transmission is made.
11. Technological measures have been taken to reasonable prevent both:
a. retention of the work in accessible form by students for longer than the class session; and
b. unauthorized further dissemination of the work in accessible form by such recipients to others
12. The institution has not engaged in conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent retention or dissemination of their works.
13. The work is stored on a system or network in a manner that is ordinarily not accessible to anyone other than anticipated recipients.
14. The copy of the work will only be maintained on the system or network in a manner ordinarily accessible for a period that is reasonably necessary to facilitate the transmissions for which it was made.
15. Any copies made for the purpose of transmitting the work are retained and used solely by the institution.
All requirements listed above must be meant before material can be used
Remember that use is limited to performances and displays. The TEACH Act does not apply to materials that are for students' independent use and retention, such as textbooks or readings.
Using / transmitting materials requires that:
What is 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 poetry or a short story reading. Non-dramatic musical works include all music other than opera, music videos, (because they are audiovisual), and musicals.
What are“reasonable and limited portions ” of other performances ?
This category includes all audiovisual works such as films and videos of all types, and any dramatic musical works excluded above.
Amounts should be comparable to typical face-to-face displays and would include still images of all kinds.
What is a class session?
A class session is:
What are mediated instructional activities?
What is actual supervision?
Supervision does not mean that the instructor is the only one who can post the materials to be performed or displayed. Someone enrolled in the class can also post as long as there is actual supervision by the instructor—i.e. not in name only. Actual supervision also does not require constant or real-time supervision or prior approval.