TEACH ACT DEFINITIONS
1. Accessible Form
Measures that do not cause the destruction of or prevent the making of a digital file leave the work in accessible form. For example, if something is merely encrypted and the recipient is given the key, then it is in accessible form after that.
For a post secondary educational institution, accreditation is as determined by a regional or national accrediting agency recognized by the Council on Higher Education or the U.S. Department of Education. Institutions qualify for accreditation for TEACH purposes at the institutional level (not the course level). This means that all courses at a qualifying institution are eligible to use TEACH whether or not they are part of a degree or certificate granting program.
The legislative history indicates that this phrase 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' does not require constant or real-time supervision or prior approval.
A class session is that period during which a student is logged on to the server of the institution making the display or performance. The materials can remain on the institution's server for the duration of their use in one or more courses. The materials may be accessed by a student each time the student logs on to participate in the particular class session of the course in which the display or performance is made.
The materials on this course Web site are only for the use of students enrolled in this course for purposes associated with this course and may not be retained or further disseminated.
To display a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images non sequentially.
Lawfully made works include not only materials made with the permission or under the authority of the copyright holder, but also those made under the authority of the copyright act, such as "fair use" copies.
Literary works are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.
Mediated instructional activities are activities that use such [permitted] works
•As an integral part of the class experience
•Under the control or actual supervision of the instructor
•In a manner analogous to performances and displays in live classroom settings
According to the Senate Report (p.10), such activities must use the works as part of the course rather than ancillary to it. Thus, the TEACH exemption would not include supplemental reading such as coursepack materials. The report also indicates that e-reserves are not included if they are not analogous to the performances and displays of a live classroom setting.
The Copyright Act does not define 'nondramatic' or, for that matter, 'dramatic'. According to Nimmer and the U.S. Copyright Office, a dramatic work is "'a written or literary work invented and set in order' in which the narrative is not related but is represented by dialogue and action." It is a "work in which the narrative is told by dialogue and action, and the characters go through a series of events which tell a connected story." Thus, performances of a nondramatic literary work would include readings from textbooks, novels, and poetry. Dramatic works would be exemplified by stage plays.
To perform a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make to the sounds accompanying it audible.
To perform or display a work "publicly" means -
(1) to perform or display it at a place open to the public or at ay place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
As used in TEACH, the 'reasonable and limited portion' requirement applies to the performance of any type of work (other than nondramatic literary or musical works which can be performed and transmitted in their entirety). In determining what is reasonable and limited one should take into account both the nature of the market for that type of work and the pedagogical purposes of the performance [from Senate Report]
This requirement does not impose a duty to guarantee that retention and further dissemination will never occur. Nor does it imply that there is an obligation to monitor recipient conduct. Moreover, the 'reasonably prevent' standard should not be construed to imply perfect efficacy in stopping retention or further dissemination. The obligation to 'reasonably prevent' contemplates an objectively reasonable standard regarding the ability of a technological protection measure to achieve its purpose.
Works covered by this are just what it says - digital educational materials It does not apply generally to all educational materials, all materials with educational value, or those developed and marketed for use in the physical classroom.
"Only one thing is impossible for God: To find any sense in any copyright law on the planet." Mark Twain
Copyright law evokes any number of adjectives from those attempting to understand and/or apply it. Many of those adjectives are negative, especially on university campuses, due to the pervasive sense that copyright is primarily a set of rules to prevent faculty and students from using the materials that they need for their classes. Few view copyright as an opportunity to accomplish their goals lawfully.
However, the negative, always-get-permission view leads nowhere fast. You simply do not have the money or the time to always search out the copyright holder and pay permission fees for each piece of the enormous amounts of scholarly materials essential for excellent teaching and research. Even Congress recognized that such an approach wouldn't work and, therefore, established the educational exceptions and fair use in the copyright act. They could see the obvious: that a robust educational system was not only good for the U.S. economy but also the best way to advance the primary purpose of copyright, which is stated expressly in the Constitution. Article I, section 8, clause 8. It provides that Congress shall have the power: "to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." "It is the only clause in the grant of powers to Congress that has a stated purpose." ( Quoted from a very interesting article, "The Purpose of Copyright" by Lydia Pallas Loren, Associate Professor of Law, Northwestern School of Law, Open Spaces Quarterly, 2008)
What CAN you lawfully do other than get permissions? This site will hopefully help you identify those things. However, if you do not see your situation addressed here, please feel free to contact me, Joy Dlugosz
Copyright 2008 Peggy Hoon (NCS)
Copyright law has many terms of art, that is, defined terms. Some of these are defined in the copyright act itself while others have been fleshed out through case law.
1. Copyright - a form of protection to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works.
Under the copyright act, there are two categories of "work for hire".The first category is an employee work for hire. In this category, if a work is prepared by an employee within the scope of his or her employment, it is a work for hire. The employer is deemed to be the "author", and, as such, is the immediate and initial copyright owner.
In the second category, the creator is often referred to as an independent contractor. In this situation, the creator is not an actual employee but rather is specifically hired or commissioned to create a work for the employer and the employer desires to hold the copyright to the work. In order for the work to be a work for hire, the work must fall within one of the enumerated categories and the parties must sign a written agreement in advance stating that the work is going to be a work for hire within the meaning of the copyright act.
A work specially ordered or commissioned for use
• as a contribution to a collective work
• as part of a motion picture or other audiovisual work
• as a translation
• as a supplementary work
• as a compilation
• as an instructional text
• as a test
• as answer material for a text
• as an atlas
A "supplementary work" is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes and indexes.
An "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
4. Fixed in a Tangible Medium of Expression - A work is fixed in a tangible medium of expression when its embodiment . . . by or under authority of the author, is sufficiently permanent . . . to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.
6. Literary works - Works, other than an audiovisual work, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.
7. Pictorial, graphic, and sculptural works - Include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans.
9. Audiovisual Works - Works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or by electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.
10. Sound Recordings - Works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied.
11. Publication - is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.
12. Derivative Works: a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work."
13. Perform: to perform a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.
15. Publicly: (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.