Besides Fair Use, the Technology, Education and Copyright Harmonization (TEACH) Act of 2002 expands existing face-to-face teaching exemptions of the copyright law, allowing teachers at accredited, non-profit educational institutions to use copyright-protected resources in distance learning (face-to-face equivalence), including websites and other digital delivery methods, without obtaining permission from the copyright holder in specific instances. These online learning rights of the TEACH Act are aligned closer to those as employed in face-to-face classroom instruction.
Copyright in Education expert Kenneth Crews points out that the TEACH Act is relevant only to transmissions where the instructor is “displaying” or “performing” materials as they would in traditional face-to-face classrooms under Section 110(1) of the Copyright Act. If the instructor is making copies and handouts, Fair Use is likely the applicable statute. For an overview of the TEACH Act, see a handout by Crews @ http://copyright.columbia.edu/copyright/files/2010/08/teach-act-summary-by-kenneth-crews.pdf.
The TEACH Act cannot be applied to library electronic course reserves; Fair Use must be used. Since Fair Use is technology neutral[i] it may supplement the TEACH Act. If the amount of the resource posted is a mediated instructional activity and comparable to what the instructor would use in face-to-face classroom instruction, i.e. satisfies the performance and display to be analogous to the type of performance or display that would take place in a live classroom setting,[ii] then the TEACH Act could be applied for use within a password protected Content Management System.[iii] However, the distributed instruction face-to-face equivalency aspect of posting documents under the TEACH Act should not substitute for course packs or supplementary readings for outside of the classroom instruction. For example, if an instructor posted a current newspaper article or recent journal article excerpt to demonstrate a point of his/her distributed lesson, this might qualify as an electronic reserve. Caution should be exercised when utilizing this type of application as an e-reserve, as it is very narrowly allowed under the TEACH Act. Under current copyright laws, librarians and educators should utilize Fair Use or copyright permission for virtually all electronic reserves. Again, the TEACH Act provides greater flexibility for instructors to display most copyrighted items for their online instruction which they would also display in their face-to-face classroom.
The American Library Association provides an extensive overview document entitled Distance Education and the TEACH Act that applies specifically to most online instruction purposes.
[i] Purdue University, University Copyright Office: Fair use analysis, http://www.lib.purdue.edu/uco/CopyrightBasics/fair_use.html
[ii] Technology, Education and Copyright Harmonization Act, Public Law 107-273, U.S. Statutes at Large 116 (2002): 1910, codified at 17 U.S.C. § 110(2), 112(f) (2005).
[iii] Kenneth Crews, Copyright Law for Librarians and Educators, (Chicago: ALA, 2006) 62.