Distance Learning
Expert-for-a-Day Discussion: TEACH Act and Reauthorization of
the Higher Education Act
March 6, 2003
On March 6, 2003, the Distance Learning Community of Practice conducted
the first of a series of day-long discussions via the CoP's listserve.
The discussion offered a brief look at the new TEACH Act, and the
forthcoming reauthorization of the Higher Education Act. The discussion
was moderated by Bill McCaughan (Oregon State University) and featured
Ken Salomon, attorney with the Washington office of Dow, Lohnes
and Albertson and a frequent speaker and author on intellectual
property issues.
Prior to the start of the discussion, a number of background materials
were distributed via the listserve. To access these materials, please
click here.
1. Question: The TEACH Act requires
notification to students that copyrighted materials are being used.
What does this notification need to look like? Does it have to be
part of each course, can it be posted on a portal website, how extensive
does it have to be? (Marie Barber, University of Nebraska, Lincoln)
Answer: The TEACH Act imposes on the institution the obligation
to provide notice, but it does not specify the parameters or minimum
contents of the notice. That is left to the discretion of the institution.
I think there are various ways to go here. The, if you will, most
compliant, would be a notice that pops up whenever the material
is accessed by a student enrolled in the online course stating the
the content may incorporate copyrighted material that may not be
copied, transmitted, etc without permission or legal authority--such
as fair use, the TEACH Act, etc. Including the notice at the start
of the course when the student first logs on, providing it in the
syllabus, etc., may also be sufficient. Again, its left up to the
discretion of the institution. I emphasize institution, because
that is the eligible entity under the act not the instructor. From
a lawyer's perspective, I think it makes good sense to have a notice
requirement that is uniform across the institution rather than leaving
compliance and the text itself to the choice and vagaries of each
individual instructor.
2. Question: The TEACH Act requires
institutions to develop "copyright policies" in order
to take advantage of the Act. What does this entail? (Claudine Schweber,
UMUC)
Answer: I believe that what Congress is after here is requiring
institutions to adopt and enforce policies that provide information
about copyright law and promote compliance with the law. In other
words, a framework that says this is what a copyright gives to owners,
these rights are balanced by certain limitations, such as fair use,
that we expect students, faculty and staff to honor copyright on
campus and that we will take disciplinary action against members
of the campus community who flagrantly and/or repeatedly violate
the law and the institution's policies. Again, I believe that most
institutions already have copyright policies in place. However,
institutions would be well advised to review what they have in light
of the TEACH Act. Finally, at the end of the day, it will not serve
as a defense if an institution has a policy but fails to enforce
it.
3. Question:The TEACH Act seems to cover
synchronous learning only. If so, is there legislation being planned
to cover asynchronous environments lasting well beyond a semester?
(Evan S. Smith, University of Missouri-Columbia)
Answer: Actually, the TEACH Act does cover asynchronous
environments. The new law gives institutions the right to store
copyrighted materials on their server. This enables asynchronous
displays and performances.
4. Question:One requirement is to have
technology safeguards in place? Can you elaborate on what these
technical safeguards need to be and how extensive they need to be?
(Marie Barber, University of Nebraska, Lincoln)
Answer: Towards the end of last month, the American Library
Association and EDUCAUSE completed a white paper entitled Technological
Requirements of the TEACH Act. See, http://www.ala.org/washoff/teachdrm.pdf/.
This is a very useful paper that provides guidance on complying
with the various technological requirements of the TEACH Act: limit
access to to enrolled students; retention in accessible form; retransmission;
interference with TPMs.
5. Question:How does the TEACH Act affect
the use of content management systems such as Blackboard/WebCT?
Especially where faculty are uploading content into the system and
would like the convenience of retaining the information online longterm.
(Nubi Achebo, Saint Xavier University)
Answer: It is my understanding that the use of WebCT and
other content management tools is fully consistent with the technological
requirements of the Teach Act. I believe that the ALA/EDUCAUSE paper
will be helpful in this regard.
6. Question:The TEACH Act requires that
an institution have policies in place regarding copyright and the
notification of faculty and students of copyright policies. Again
how extensive do these policies have to be? Some universities have
tutorials, extensive web sites that provide great detail. Others
have very little. What would most likely meet the TEACH Act requirements.
(Marie Barber, University of Nebraska, Lincoln)
Answer: As I noted in the response to the first set of questions,
institutions are given discretion to design/develop their own copyright
policies and tutorials. What is appropriate at one institution may
be too extensive on another.
In other words, there is no minimum floor or maximum ceiling required
by the TEACH Act. Common sense, good faith and good judgment are
the measure of what is effective and in compliance with the Act.
Georgia Harper at the University of Texas has an incredibly complete
and thorough online resource, the Crash Course in Copyright, http://www.utsystem.edu/ogc/intellectualproperty/cprtindx.htm#top.
Kenny Crews at Indiana University-Purdue University has another
excellent albeit less extensive Copyright Quickguide, http://www.copyright.iupui.edu/quickguide.htm.
And the Library of Congress publishes a circular on Copyright Basics,
http://www.copyright.gov/circs/circ1.html
7. Question: What is a general definition
of "fair use" under the Teach Act? (David Lee Amstutz,
University of Nebraska, Lincoln)
Answer: A common misconception is that the TEACH Act is
a modification of fair use. The TEACH Act in no way amends the fair
use section of the Copyright Act, Section 107. In short, fair use
is not affected or modified in any way by the TEACH Act.
8. Question:The TEACH Act has a "class
session" requirement. What exactly does this term mean in online
learning? Does that mean that the performance or display must be
within a specified time frame with student access terminated after
that time period expired? (Claudine SchWeber, UMUC)
Answer: As used in the TEACH Act, "class session"
relates to asynchronous instruction. It does not refer to a specified
period of time. Therefore, a class session necessarily will vary
from individual student to individual student. It should be thought
of generally as the period during which a student is logged onto
the institution's server and accessing the instructional material
for that session.
9. Question:How, or does, the TEACH
Act address online instruction for students with disabilities (or
faculty with disabilities)?
Answer: There is no mention or special provision in the
TEACH Act for disabled students. The only student "eligibility"
requirement is that the individual be enrolled in the online course.
And unlike the prior version of Section 110(2), the course can be
transmitted to wherever the student is located whether a classroom,
a dorm room, a library, learning center, at home, at the work. There
is no mention in the TEACH Act relating to disabled faculty members
who are teaching on line. I suppose that might be an issue under
the ADA.
10. Question:If teaching faculty want
to post a full text article to a course management system for a
limited time for their class to read, is it enough to password protect
for all licensed users (a general university-assigned login and
password)? OR, must access to this article be limited to only the
class members? Does this situation change for paper articles scanned
(by library or by professor) into a PDF document?
Answer: I would assume that the posting of the entire text
of supplemental readings would be done under one of the library
exemptions to the Copyright Act rather than the TEACH Act .I'd like
to add that Georgia Harper, chief IP counsel at the University of
Texas, has prepared a very good discussion of electronic reserves.
You can access it at http://www.utsystem.edu/ogc/IntellectualProperty/l-resele.htm/.
11. Question:What is the significance
of the proposed change for the “12 hour” rule to the “one
day” rule in the Higher Education reauthorization proposal?
What projected impact might this have on distance education programs
in traditional, accredited, public or private universities?
Answer: The 12 hour rule no longer exists. The Department
of Education has replaced it with a regulation that provides that
institutions must offer at least one day of instruction a week to
qualify for federal financial aid.
Practically speaking, the loosening of the time restriction may
not bring about huge changes – at least immediately. Most institutions
deliver courses in standard semester, trimester or quarter formats.
The elimination of the 12-hour rule provides flexibility, however.
It enables distance educators to develop focused courses or Modules
that are shorter than semesters, trimesters or quarters. Such nonstandard
course formats, it is argued, have particular appeal to adult learners
and work well in the corporate training sector and with the military.
12. Question:The 12-hour rule has been
changed. However, the one day a week of instruction rule does not
seem to me to be much better. How is it an improvement? Also, can
you define what one day a week of instruction means?
Answer: The main advantage of the one-day a week of instruction
rule is that it offers distance educators greater flexibility. Opponents
of the one-day rule argue that the change from the 12-hour rule
to the one-day rule gives institutions too much flexibility and
could lead to fraud and abuse.
Unfortunately, just what one day of online instruction means remains
ambiguous.
13. Question:What impact does the new
rules on copyright have on the sharing of information and the use
of database information for research or other opportunities besides
online education?
Answer: The TEACH Act only applies to the transmission of
instructional material to students who are officially enrolled in
the online class if the transmission is part of the systematic instructional
activities of the institution and the transmission is mediated (e.g.,
under the direction or supervision) of the instructor.
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