The face-to-face exception is very helpful in the classroom setting. Essentially, in a “live” classroom (with no copying), section 110(1) gives instructors an unlimited right to display legally obtained materials as a part of the course. But section 110(1) is absolutely limited to live classes with no copies (recordings).
This act has been amended in recent years to be much more helpful in the distance learning setting. In a relatively recent amendment to section 110, referred to as the TEACH Act, Congress has adopted some helpful exceptions for some distance learning uses, but has also adopted stringent policy and technical requirements. In order for the use of copyrighted materials in distance education to qualify for the TEACH exemptions, ALL of the following criteria must be met:
- The institution must be an accredited, non-profit educational institution.
- The use must be part of mediated instructional activities.
- The use must be limited to students enrolled in a specific class.
- The use may be either 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.
- "Reasonable and limited portions," such as might be performed or displayed 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 some technological measures to ensure compliance with these policies, beyond merely assigning a password.
TEACH specifically does not extend to:
- Electronic reserves and coursepacks (electronic or paper).
- 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.
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Keep in mind that the TEACH Act does not supersede the fair use exception. In some instances, you will want to consider BOTH possible exceptions. Typically, consider the TEACH Act first for your course content. If applicable, it will give you the most latitude for on-line courses. It will NOT apply to any course reserves, so you will need to consider fair use guidance for any course reserves.