Copyright Defense to Complaints About Distance Learning in a COVID-19 Era

Complaining about innovative distant learning programs in a COVID-19 era, some students and parents are revolting and seeking refunds of their tuition fees. Some are even suing their colleges. The suits claim that they paid for in-person education, and distance learning in this age of COVID-19 lockdown doesn’t cut it.  See “College Students Demand Refunds,” Wall Street Journal, April 11, 2020

But the students are missing something important. Their tuition fees guarantee them mediated instruction, which does not need to be in-person instruction. Mediated means that an instructor must control or actually supervise the uses of content, whether in the classroom or remotely. One only needs to look at the history of the TEACH Act of 2002, a copyright law designed to facilitate and expand learning at a distance. See our recent blog: The Pandemic: Copyright’s Role in the Switch to Distance Education and Online Learning at Home. While the law was not adopted with COVID-19 in mind, it is a roadmap to the legality of distance learning as a proper alternative to face-to-face teaching. I know, because I was part of the educational team that helped conceive of the TEACH Act and get it passed.

A brief history. In the 1990s, the Internet had moved from government servers to educators and then to the general public. Along the way, copyright owners – authors and publishers of books, textbooks, movies, photographers, newspapers, literally any creative work – got worried. With the Internet, their works were being shared online without distributors paying the bill. Congress was forced to study the problem and then passed the Digital Millennium Copyright Act, the DMCA for short. While the DMCA addressed the publishers’ issue, educators felt left out. The Copyright Act, written in the 1970s, hadn’t kept up with many reforms happening in education. Decades earlier, distance education consisted of “Sunrise Semester” (an old TV series from the 1950s) and educational A/V staff sending video from one classroom to another via cable.

At the same time, education was reaching out far and wide. With the use of the Internet, schools could have students located in other cities – even other countries. A fix was needed to update copyright law to make it 21st century-ready. The fix that came about was the TEACH Act. Simply stated, the Act allows schools to use the Internet to supplement or substitute for in-class courses. Provided that the educational services were mediated, that is teacher-driven, mirrored what happened or could happen in the classroom, and access to the content stream was controlled and limited to legitimately enrolled students, schools could provide education remotely and use all kinds of copyrighted materials lawfully. For a deeper dive into the requirements and limitations of the TEACH Act, see our TEACH Act FAQ.

Even before 2020, distance learning has been widely embraced. While the TEACH Act did not anticipate the constraints imposed by social distancing, it does offer educators a legitimate defense to student complaints and lawsuits. Clearly students feel cheated of the opportunity to “be there,” but that current sacrifice is needed for the common good. However, those who are demanding refunds for the cost of their learning need to think again. Nearly two decades ago, the copyright law anticipated a time when learning had to be remote. The copyright reform established the legal predicate for the actions that schools throughout the U.S. are taking today.