Overview

The Technology, Education and Copyright Harmonization Act (the TEACH Act) was part of a larger Justice Reauthorization legislation (H.R. 2215) signed into law by President George W. Bush on November 2, 2002. "Long anticipated by educators and librarians, TEACH redefines the terms and conditions on which accredited, nonprofit educational institutions throughout the U.S. may use copyright protected materials in distance education - including on websites and by other digital means - without permission from the copyright owner and without payment of royalties."

"The TEACH Act is a clear signal that Congress recognizes the importance of distance education, the significance of digital media, and the need to resolve copyright clashes. The new law is, nevertheless, built around a vision that distance education should occur in discrete installments, each within a confined span of time, and with all elements integrated into a cohesive lecture-like package."

"In other words, much of the law is built around permitting use of copyrighted works in the context of 'mediated instructional activities' that are akin in many respects to the conduct of traditional classroom sessions. The law anticipates that students will access each 'session' within a prescribed time period and will not necessarily be able to store the materials or review them later in the academic term; faculty will be able to include copyrighted materials, but usually only in portions or under conditions that are analogous to conventional teaching and lecture formats. Stated more bluntly, this law is not intended to permit scanning and uploading of full or lengthy works, stored on a website, for students to access throughout the semester - even for private study in connection with a formal course."

• Information on these pages was gleaned from the "TEACH Act Standards" prepared for the American Library Association website by Kenneth D. Crews, Professor of Law, Director, Copyright Management Center, Indiana University School of Law - Indianapolis. Quotation marks denote specific narrative provided on the site by Crews.

The materials which follow recognize the TEACH Act requirements which cover three areas of responsibilities: the responsibilities of the University administration or its designees, the responsibilities of information technology services, and the responsibilities of faculty members or other instructional staff.

Accredited Nonprofit Institution

The United States Department of the Treasury, Office of Internal Revenue Services, letter of September 9, 1991 from Harold M. Browning, District Director, reaffirmed the University of Detroit Mercy's status as a 501(c)(3) organization. There is not a separate exemption letter for the University in that the University is included "in the group ruling issued to the United States Catholic Conference" and that "the group exemption letter applies to all of the subordinate organizations on whose behalf the United States Catholic Conference has applied for recognition of exemption."

The University of Detroit Mercy is accredited by the The Higher Learning Commission, North Central Association of Colleges and Schools. Confirmation of the University's accreditation may be found on the North Central Association website, Directory of Affiliated Institutions.

Adherence

Adherence to copyright regulations is paramount protection for the author or creator of a work, the publisher, the user, and the University. The use of another person's work in the teaching and learning environment must always be recognized whether the material is used in a print or electronic form.

The University of Detroit Mercy will make every effort to adhere to the TEACH Act standards through the education of students and faculty on the provisions of the TEACH Act. The University will maintain technological security within the infrastructure wherever possible. Faculty members are best positioned to optimize academic freedom and determine course content but it must be done within the parameters of the Copyright Law and the TEACH Act.

TEACH Act Copyright Policy

Faculty members have specific privileges when using print copyrighted materials for the classroom. In a similar manner, many of these privileges are preserved when using copyrighted information in an electronic course or in distance learning. In fact, the TEACH Act grants even greater privileges in the use of a resource, and the amount from a resource, when information is being provided in an online course. In particular, the law now

explicitly permits

• Performances of non-dramatic literary works (may use all)
• Performances of non-dramatic musical works (may use all)
• Performance of any other work, including dramatic works and audiovisual works, but only in "reasonable and limited portions"
• Displays of any work "in an amount comparable to that which is typically displayed in the course of a live classroom session"

explicitly excludes

• Works that are marketed "primarily for performance or display as part of mediated instructional activities transmitted via digital networks (commercially available educational materials, e.g., electronic databases)"
• Performances or displays given by means of copies "not lawfully made and acquired" under the U.S. Copyright Act, if the institution "knew or had reason to believe" that they were not lawfully made and acquired.

Access to an "explicity permits" work is restricted to students enrolled in the course and may be accessed by the students only during the duration of the class session or online assignment. The "explicitly excludes" precludes digitizing or downloading information but does allow linking via URL to the source of the commercially available materials.

Faculty Oversight

Points in the law indicate that since faculty members have the right of ultimate authority over the content of their courses, including the use of copyrighted materials, they also have oversight responsibility. Faculty member privileges which extend to the use of copyrighted materials for educational purposes, not recreational or any other purpose, require adherence to the following:

• The performance or display "is made by, at the direction of, or under the actual supervision of an instructor"
• The materials are transmitted "as an integral part of a class session offered as a regular part of the systematic, mediated instructional activities" of the educational institution (prevents faculty from including in digital transmission copies of materials that are specifically marketed for and meant to be used by students outside of the classroom in the traditional teaching model, e.g., textbooks, chapters from various books, entire short works, reserve materials)
• The copyrighted materials are "directly related and of material assistance to the teaching content of the transmission"
• The law excludes posting in a course copyrighted executable software that has not been licensed by institution.
• The law excludes conversion of materials from analog into digital formats, except
  
  
  • Amount that may be converted is limited to the amount of appropriate works that may be performed or displayed, pursuant to the revised Section 110(2) of the copyright law
  • Digital version of the work is not "available to the institution" or a digital version is available, but it is secured behind technological protection measures that prevent its availability for performing or displaying in the distance-education program consistent with Section 110(2) of the copyright law

• The materials being used are accompanied by a copyright "notice" for inclusion in electronic materials: NOTICE: This material may be protected by Copyright Law (Title 17, U.S. Code, Section 110(2))
• The materials being provided in print are accompanied by a copyright "notice:" NOTICE: This material may be protected by Copyright Law (Title 17, U.S. Code).
• Prepare statement for students on downloading and re-transmission of electronic information: NOTICE: The materials in this online course are protected by the U.S. Copyright Law Title 17, U.S. Code, Section 110(2). Access to course content is restricted to registered students and course materials may not be retransmitted. (Wording approved by Knowledge Support Group 05/03/05)

Copyright Information Distribution

Education and communication of copyright policy statements to faculty and students is a University responsibility. Acceptance of written copyright policies and standards must be negotiated on many levels of the University. As the discussions continue, the information is being provided in the interim by the Libraries and Instructional Design Studio as guidance for faculty and students. Since the Libraries/IDS was charged with the Task Force responsibility to bring the documentation and orientation to fruition, the following is proposed as a way to educate university personnel.

Information shall be posted on the University website, linked in Blackboard or any other course management system in use at the University. The Faculty Support Website, online undergraduate and graduate catalogs, and the University Student Handbook shall provide links to the policy site. The inclusion in sites other than those under the control of Libraries/IDS is under negotiation.

Library bibliographic databases display terms of allowable content at:

http://research.udmercy.edu/find/databases/

Faculty and Staff Education

• Include a copyright sessions as part of new faculty orientation, including a sign off that documentation was received; for part-time/adjunct faculty will be included with their contact.
• Include a copyright session as part of the Human Resources orientation of new hires, including a sign off that training took place and documentation was received.
• Encourage faculty to use the quicktime server to stream video content (by the nature of streaming this would prevent downloading of files); if the content is attached in Blackboard video content could be downloaded.
• Inform faculty of the advantages of creating coursepacks on Blackboard and advise them which databases allow such use.

Technology Policy

The TEACH Act law requires the University to limit access to an online course containing copyright materials to currently registered students in that course. The University of Detroit Mercy has applied controls to the course management server to the extent technologically feasible for this University. In doing so,

• Access has been restricted to only students registered for a specific course
• Access has been restricted to only the faculty member who is teaching a specific course
• The practice of restricting access to the semester in which a student takes a course provides for the "technological measures" that restrict use of content "in the ordinary course of their operations." Faculty are instructed to place their content in pdf files using the pdf software currently on the computer image and available as freeware. Students are to be reminded not to pass this content on to others outside their course.
• The University will not "engage in conduct that could reasonably be expected to interfere with [digital transmission or restrictive codes or other embedded management system] such technological measures."
• Content will be left on the server with password-protected access only for the academic year in which the student takes a course. All course sites are removed at the end of each academic year (August) prior to the start of the new academic year.
• Students shall be reminded that no "further copies" will be made of retained copies of digital transmissions that include copyrighted materials but retained copies may be retrieved for additional transmission.

The Copyright Law is complex. Although faculty members are allotted many privileges under the law, the privileges are not unlimited. If there is a question whether an item is subject to a copyright restriction, caution should be the operational stance. It is better to apply for copyright clearance than abuse the privileges granted.