Fair Use and TEACH Act FAQ

When assessing the seriousness of a copyright infringement, the most significant factor is often the perceived value of the material in the marketplace. In a lawsuit, the copyright holder may be awarded actual or statutory damages, to be paid by the defendant (you) or defendants (others implicated with you in a lawsuit) to the copyright holder.

Actual damages refer to perceived lost profits incurred by the copyright violation(s). However, the copyright holder may attempt to recover statutory damages (from $750 to $30,000) for each claimed incident of infringement. If the copyright holder can prove that the infringement was committed "willfully," the court may order the defendant to pay up to $150,000 in addition to the statutory damages.

NOTE: Even when infringing parties are not aware that they are violating copyright laws, the court may still require payment in statutory damages for each proven infringement.

Works are in the public domain if they are not covered by intellectual property rights at all, if the intellectual property rights have expired, and/or if the intellectual property rights are forfeited. Copyright law applies to material created on or after January 1, 1978 and last the duration of the life of the work's creator plus 70 years, after which they become public domain and require no permission for use.

Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, and allows limited use of copyrighted material without requiring permission from the copyright owner. There are four factors that must be considered to determine if use of a given work applies under fair use:

• The purpose and character of the use (including whether such use is for commercial gain or for nonprofit educational purposes);
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the work as a whole; and
• the effect of the use upon the potential market for or value of the copyrighted work.

To help you evaluate whether or not your intended use of material may apply, it is HIGHLY RECOMMENDED that you please visit and use the Fair Use Evaluator from the American Library Association.

The TEACH Act (The Technology, Education and Copyright Harmonization Act of 2002) is derived from copyright laws that allow educators to copy documents or use copyrighted materials and media in a face-to-face classroom setting. Because of expanding academic needs for distance education and online learning, revisions to copyright infringement conditions needed to be made.

A legal definition of the TEACH Act can be found in its entirety by searching for “Teach Act” at www.copyright.gov for more information.

Copyright laws and fair use guidelines were written for traditional classroom settings and not for distance education or online learning. The TEACH Act expands on performance and display exemptions to help them apply with the technology needs of distance learning and online course delivery.

The TEACH Act is NOT an application of fair use with its restrictions on continued reuse of the same copyrighted materials. Rather, it is a version of the exemption for public performance in the classroom.

To be more specific, the TEACH Act revisions allow (under certain restrictions and subject to specified conditions) the use of copyrighted materials in the distance education and online learning environments without requiring expressed permission of the copyright holder. Distance education and online learning gain the following:

• Instructors can use a wider range of materials and media in distance education and online learning environments.
• Students can participate and share content in distance education and online learning activities from virtually any location.
• Participants have more flexibility with legally storing, copying and digitizing materials and media.

In order to qualify for the TEACH Act exemptions that allow use of copyrighted material for distance education and online learning, the following criteria needs to be met:

• The institution must be an accredited, nonprofit educational institution.
• The use must be part of a mediated instructional activity.
• The use must be limited to a specific number of students enrolled in a specific class.
• The use must either be for “live” or asynchronous class sessions.
• The use must not include the transmission of textbook materials, materials “typically purchased or acquired by students,” or works developed specifically for online uses.
• Only “reasonable and limited portions,” such as what might be presented during a typical live classroom session, may be used.
• The institution must have developed and publicized its copyright policies, specifically informing students that course content may be covered by copyright, and include a notice of copyright on the online materials.
• The institution must implement technological measures to ensure compliance with these policies, beyond merely assigning a user password. Ensuring compliance through technological means may include user and location authentication through Internet Protocol (IP) checking, content timeouts, print-disabling, cut and paste disabling, etc.

Exemptions under the TEACH Act do NOT apply to the following:

• Electronic reserves, course packs (electronic or paper) or interlibrary loan (ILL).
• Commercial document delivery.
• Textbooks or other digital content provided under license from the author, publisher, aggregator or other entity.
• Conversion of materials from analog to digital formats, except when the converted material is used solely for authorized transmissions and when a digital version of a work is unavailable or protected by technological measures.

The TEACH Act does NOT supersede fair use or existing digital license agreements.

Usage considerations of The TEACH Act can affect more than just instructors. Use the appropriate TEACH Act Checklist below to help ensure your use of copyrighted material is in compliance.

TEACH Act Checklist – Instructors:

• The work to be transmitted may be any of the following:
  • Performance of a non-dramatic literary work.
  • Performance of a non-dramatic musical work.
  • Performance of any other work, including dramatic works and audio-visual works, but only in "reasonable and limited portions."
  • A display in an amount comparable to that which is typically displayed in the course of a live classroom session.
• The work to be transmitted may not be any of the following:
  • Marketed primarily for performance or display as part of a digitally transmitted mediated instructional activity.
  • A textbook, course pack or other material in any media which is typically purchased or acquired by students for their independent use and retention.
• Any permitted performance or display must be both:
  • Made by, at the direction of, or under the direct 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.
  • Directly related and of material assistance to the teaching content of the material.
• The institution does not know or have reason to believe that the copy of the material to be transmitted was not lawfully made or acquired:
  • If the material to be used has to be converted from print or another analog version to digital format, then:
  • The amount of material converted is no greater than the amount that can lawfully be used for the course.
  • There is no digital version of the material available to the institution, or the digital version available to the institution has technological protections that prevent its lawful use for the course.

TEACH Act checklist – Institution:

• The institution the material is transmitted from is an accredited nonprofit educational institution.
• The institution has a publicized policy regarding copyright.
• The institution has provided information materials to faculty, staff and students describing U.S. copyright law.
• The transmission of material is only available to students enrolled in the course for which the transmission is made.

It is critical that students fully understand copyright restrictions while participating in distance education or online learning activities. To help ensure that students understand the institution policy, an introductory copyright statement is posted at the Blackboard login page. This statement informs students about restrictions regarding the use of copyrighted material within their courses, as well as providing a direct link to the University copyright policy web page.

Copyright matters can be complicated, and many need to be evaluated on a case-by-case basis. Concordia-Chicago has several direct contacts depending on what kind of material you are working with. Feel free to contact the following departments directly so we can further assist: Library Resources; Media Productions/User Services; Instructional Design Team.