As an online educator for UC Berkeley Extension Online, I have been particularly interested in the implications of the TEACH Act (Technology, Education and Copyright Harmonization Act) that was signed into law by the Shrub on November 2, 2002.
Unfortunately, after reading a report by Kenneth D. Crews for the American Library Association on the subject, it would appear that the TEACH Act's provisions will only further complicate the entire distance learning situation more than anything else. The Act's provisions certainly don't do anything to simplify the process of determining if a particular use of a copyrighted work is allowable within a specific educational setting, which was its supposed intention.
The TEACH Act is an opportunity, but it is also a responsibility. The new law is a benefit, but also a burden. Implementing the law and enjoying its benefits will be possible only with concerted action by many parties within the educational institution. Because of the numerous conditions, and the limitations on permitted activities, many uses of copyrighted works that may be desirable or essential for distance education may simply be barred under the terms of the TEACH Act. Educators should seek to implement the TEACH Act, but they should also be prepared for exploring alternatives when the new law does not yield a satisfactory result. Among those alternatives:
· Employing alternative methods for delivering materials to students, including the expansion of diverse library services, as noted above.
· Securing permission from the copyright owners for the use of materials beyond the limits of the law.
· Applying the law of fair use, which may allow uses beyond those detailed in the TEACH Act.
One objective of the TEACH Act is to offer a right of use with relative clarity and certainty. Like many other such specific provisions in the Copyright Act, the new statutory language is tightly limited. An ironic result is that fair use-with all of its uncertainty and flexibility-becomes of growing importance. Indeed, reports and studies leading to the drafting and passage of the new law have made clear that fair use continues to apply to the scanning, uploading, and transmission of copyrighted materials for distance education, even after enactment of the TEACH Act. A close examination of fair use is outside the scope of this particular paper, but fair use as applied to distance education will be the subject of further studies supported by the American Library Association.