RE: Face to face lectures and Media on Blackboard: TEACH Act?

["Peter B. Hirtle" <pbh6@xxxxxxxxxxx>]

Kevin has said it all, but one should keep in mind as well that the TEACH Act
is restricted to the type of use that might take place in the classroom during
the course of F2F instruction.  As the Senate report notes, "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."  So assuming that all of the other
requirements are met, you can use the TEACH Act to post what is integral to
the classroom, but not the material that is to be consulted outside of the
classroom.  A fair use analysis, as Kevin suggests, would be warranted.

Peter Hirtle

-----Original Message-----
From: Kevin Smith [mailto:kevin.l.smith@xxxxxxxx]
Sent: Monday, April 26, 2010 1:09 PM
To: Brenda Nelson; digital-copyright@xxxxxxxxxxxxxx
Subject: RE: Face to face lectures and Media on Blackboard: TEACH Act?

The TEACH Act applies to all transmissions of performances and displays for
the purpose of education in an accredited, non-profit educational
institution.
So yes, it applies to Blackboard used as part of regular instruction on a
campus as much as to true distance education.  There is a different copyright
exception that allows performances and displays in the face-to-face classroom
(section 110(1) as opposed to TEACH, which primarily amended section 110(2))

The Teach Act imposes some portion limits that you should be aware of.  It
allows the transmission of an entire non-dramatic literary or musical
performances, but only "limited and reasonable portions" of other
audio-visual
works, including video and dramatic musical performances.  So the musical
files may or may not be justifiable under TEACH, depending on what type of
music is involved.  The film is a harder case, since the plain language of
TEACH does not seem to allow entire films.  The legislative history of TEACH
suggests some flexibility, but the digital streaming of entire videos remains
hotly contested.  Most attempts to justify this practice seem to rely more on
fair use than TEACH, presumably because of the portion limits in the latter.

Both TEACH and 110(1) require that the performance or display employ lawfully
made copies.  Since transmissions under TEACH almost always require some
copying, TEACH also amended section 112 of the Copyright Act to permit such
ephemeral copying.  To make a copy from a DVD to use for digital streaming
may
be allowed under 112, but you should remember that TEACH does not authorize
the circumvention of technological protection measures.  As for the MP3 file,
whether or not that is lawfully made will depend on the circumstances.

Kevin L. Smith, M.L.S., J.D.
Scholarly Communications Officer
Duke University, Perkins Library
P.O. Box 90193
Durham, NC 27708
919-668-4451
kevin.l.smith@xxxxxxxx


-----Original Message-----
From: Brenda Nelson [mailto:Brenda.Nelson@xxxxxxx]
Sent: Monday, April 26, 2010 12:30 PM
To: digital-copyright@xxxxxxxxxxxxxx
Subject: Face to face lectures and Media on Blackboard: TEACH Act?

I need a second (or third) opinion. At my institution,  courses
consist of two parts: face to face lectures, and course material
posted to the course management software Blackboard. This material
includes what I assume are legal copies of  entire videos, and entire
MP3 files that have been downloaded from web sites. Does the  TEACH
Act  apply to the material posted on Blackboard, even though it is
not used in the face to face lecture?


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Brenda Nelson
Library Support Generalist
Dana Medical Library
Medical Education Center
81 Colchester Ave.
University of Vermont
Burlington, VT 05405-0068

voice: (802) 656-4401
fax: (802) 656-0762
e-mail: Brenda.Nelson@xxxxxxx