Re: Teach Act, E-Reserves, & Fair Use?

[Jeffrey Clark <clarkjc@xxxxxxx>]

I believe ryan's cautious interpretive take is a justified one.

TEACH should not be used to justify e-reserves, at least. The Act aligns 
sanctioned uses of copyrighted works with activities analogous to those 
conducted in a real-time, real-space classroom. (Yes, of course this 
interpretive limitation is awkward in regard to some DE realities. But 
there it is.) Also, TEACH explicitly refers (where performance or display 
of non-dramatic literary and musical works are *not* the works involved) to 
using a "reasonable and limited portion". If TEACH were prescriptive for 
e-reserves, this provision would outright close off much of what some more 
adventurous library services are doing and justifying.

In fact, the Senate Judiciary Committee report that accompanied the 
original TEACH Act draft explicitly indicates it did not refer to 
e-reserves:

"The amended exemption is not intended to address other uses of
  copyrighted works in the course of digital distance education, including
  student use of supplemental or research materials in digital form, such
  as electronic course packs, e-reserves, and digital library resources.
  Such activities do not involve uses analogous to the performances and
  displays currently addressed in section 110(2)." 


But this Senate report on TEACH also states in its section
"Relationship to fair use and contractual obligations":

     "As the Register's Report makes clear ``critical to [its conclusion
  and recommendations] is the continued availability of the fair use
  doctrine.''\10\
   Nothing in this Act is intended to limit or otherwise to alter the
  scope of the fair use doctrine. As the Register's Report explains:
  \10\Id. at xvi.
                    Fair use is a critical part of the distance
         education landscape. Not only instructional performances and
         displays, but also other educational uses of works, such as
         the provision of supplementary materials or student
         downloading of course materials, will continue to be subject
         to the fair use doctrine. Fair use could apply as well to
         instructional transmissions not covered by the changes to
         section 110(2) recommended above. Thus, for example, the
         performance of more than a limited portion of a dramatic work
         in a distance education program might qualify as fair use in
         appropriate circumstances.\11\"

All of the foregoing can be found in the Senate report text at: 
ftp://ftp.loc.gov/pub/thomas/cp107/sr031.txt .

This helps confirm the continued operability of the "fair use" provision... 
but also that it's not dealt with or supported directly by TEACH provisions 
themselves. While the Senate report isn't the law itself, its evidence as 
authoritative interpretation of the legislation's intentions should weigh 
pretty heavily.

Jeff
**********
Jeff Clark
Director
Media Resources (MSC 1701)
James Madison University
clarkjc@xxxxxxx
540-568-6770 (voice)
540-568-3405 (fax)

--On Wednesday, February 05, 2003 4:00 PM +0000 
digital-copyright-digest-help@xxxxxxxxxxxxxx wrote:

> ----------------------------------------------------------------------
> Date: Tue, 4 Feb 2003 08:35:34 -0700
> To: <digital-copyright@xxxxxxxxxxxxxx>
> From: "Ryan Charles" <rcharles@xxxxxxxxxxxxxxx>
> Subject: Teach Act, E-Reserves, & Fair Use?
> Message-ID:
> <A9E04E87B7832E49B168292BF2E6803456D1A2@xxxxxxxxxxxxxxxxxxxxxxx>
>
> After reading all of the talk on Ereserves and the teach act I get the
> impression that people on the listserv are intending the act to cover
> placing text from books online.  The act however (in my opinion) is
> specifically talking about display/performances which to me means a
> painting displayed on an overhead or a short clip of a nondramatic
> performance.  I find no support in the text of the statute to support the
> copying of chapters from a book to be displayed electronically? Any
> comments.
>
> ryan