Photo by Ravages CC-BY-NC-SA
At the heart of many copyright infringement issues are the problems of reproduction and distribution. When making materials available online an instructor may save a copy (reproduction), and then post it someplace online (distribution).
The fair use exemption allows for some reproduction and distribution for education purposes – but within a limited and specific scope. Fair use will not cover a professor copying the publisher’s version of a journal article and posting it to the open web for students to access. To do this, the professor needs to have obtained specific permission from the copyright holder of that version in advance.
However, the professor could copy the link to the webpage where the article is legally available and put this link on a web page which is openly accessible. In this situation, the article is not being reproduced. Furthermore, by pointing people back to the original source for access, there is not a problem with distribution. For these reasons, it is advisable to make linking the default option when working with online materials rather than posting.
The TEACH Act (Teacher, Education, and Copyright Harmonization Act) was signed into law in 2002 for the very specific purpose of revising Section 110(2) of the Copyright Act and replace it with an updated version. The previous version spoke mainly to the old distance education model of using closed circuit television to reach students in an off-site classroom.
The new version updates Section 110(2) to be more relevant to today's distance education model which involves digital transmissions that can reach students anywhere at anytime and also expanded the range of allowable works that may be used. What the TEACH Act largely accomplished was to allow the same exemptions enjoyed by teachers instructing in a face-to-face setting to those instructing in an online, distance education setting.
As such, the scope of the TEACH Act is limited to the online learning environment of distance education classes only. In addition, for an instructor to claim a TEACH Act exemption, that instructor's institution must enact a checklist of measures to become TEACH Act compliant (listed below).
It is very important to remember that the Teach Act exemptions apply only in the online, distance education setting. It does not apply to the use of a course management system for face-to-face courses, nor does it apply to E-reserves.
To qualify for the TEACH Act exemption, ALL of the following criteria must be satisfied. For further explanation of of each requirement and a breakdown of which requirements fall most often within the role of the instructor, which fall within the role of the instituion, and which fall within the role of the institution's information technology officials, see Kenneth Crews' detailed breakdown.
Remember that even though a use may not qualify for exemption under the TEACH Act, it may still qualify under fair use.