The Pandemic: Copyright’s Role in the Switch to Distance Education and Online Learning at Home

Copyright might seem unrelated to the pandemic, but the suddenly critical role of online education especially for young students raises important new issues and opportunities in that area. As schools are closing around the country, some perhaps for the rest of the year, our heroic teachers are scrambling to make sure that the education of their students can continue at home via online learning. In creating online programming, they will likely need to rely on a heretofore underutilized provision of the Copyright Act.

Prior to 2002, when the TEACH Act (17 U.S.C. Section 110(2)) became law, the Internet did not embrace distance education, and the exemption from infringement for use of copyrighted materials was limited to face-to-face teaching in the physical classroom. “Distance learning” was a video feed transmitted to another classroom. For online uses, copyrighted material usually had to be cleared with the copyright owner (generally a time-consuming and difficult process) or had to be justified on the basis of fair use principles. The TEACH Act (which was based on an idea inspired by Arnie Lutzker) added an exemption to copyright infringement for distant transmission of copyrighted materials (and the making of copies necessary for the transmission) under certain limited conditions designed to balance the interests of content owners with the goals of distance education. It promised to be an important educational reform for an interconnected world. But, while it did bring a measure of peace to campuses embroiled in debates over student use of Napster and file sharing of musical works, it has been little used in the classroom context.  There are several reasons why the TEACH Act has not made online learning equivalent to in-classroom education.

First, as the law was negotiated by content owners, educators and librarians, many preconditions to the exemption were added. Collectively, these made the law complicated and onerous and thus off-putting to many educators and institutions.  Second, in face-to-face classroom teaching, as long as the work relates to the curriculum, there are few limits on the type of copyrighted work that may be shown. However, the exemption provided in Section 110(2) only applies to “performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session.” (Emphasis added) The “limited portions” provision was pressed for by movie and video companies concerned that full-length audiovisual works or documentaries would fall within the exemption; hence, “limited portion” is a major limitation.

In addition, the exemption does not apply to materials not directly used in the online classroom but intended to supplement the lesson. Finally, there are many more requirements an educational institution must meet. (As just one example, in digitizing the work for online use, the educator must be sure that there is not already a digital copy of the work that contains technological protections intended to prevent its copying.)

Thus, educators have tended to fall back on the fair use analysis to determine what they can and cannot use in online education. And, as we all know, that analysis is very fact-based and often the answers are not clear. 

The closing of schools due to the pandemic and the resulting move toward online learning as the only way to avoid interrupting education — a new phenomenon at the elementary and middle school levels — virtually begs a fresh look at the TEACH Act. Relying on fair use will not be sufficient and will be risky in many situations. There are some online resources that can be of help in navigating the complexities. See, for example, the checklist for use of the TEACH Act that the University of Texas has created. We at Lutzker & Lutzker would be very happy to explain the intricacies of the TEACH Act and help our clients develop copyright policies and procedures that maximize the use of Section 110(2) or to answer specific inquiries that educators may have in designing their new online educational programs.