What is Distance Education?
Also known as “distance learning” or “e-learning,” distance education is basically teaching outside the traditional classroom setting or teaching students from a distance. The modern version of distance education specifically refers to taking classes by accessing the Internet with personal computers. There are various ways that this is accomplished. A teacher can transmit information digitally to students who receive the education on personal computers. There are software programs that are designed to transmit education over the internet to students automatically. Teachers in classrooms may require students to access a class website for assignments and education materials. There may be classes where students never meet in the same location and all instruction is received only through the Internet.
Some distance courses are interactive, some are not. When teaching occurs in real time, that is when students in a distance education class receive information at the same time it is being transmitted, the process is referred to as “synchronous.” When students log on to their class websites for instruction at various times that are convenient to each student, the process is known as “asynchronous.”
Why is Distance Education Used Instead of Traditional Classroom Teaching?
Not everyone can attend school to get an education. Some people have jobs to work during typical classroom hours. Some people live far from campus and do not have the means or the time to travel to classes. Some people have disabilities that prevent or make attending classes unreasonably difficult. When distance education is used in addition to classroom teaching, it enhances the curriculum by adding current or additional information or making class assignments. Distance education is used extensively in places like Alaska where students are scattered over distant geographical areas that would otherwise prevent attending classes. Education is an important commodity and the Internet has broken many barriers to providing an education to people who would not otherwise get the opportunity to get an education.
How Does Copyright Law Affect Distance Education?
Using personal computers to access the Internet for distance education requires making of copies or displaying or performing materials that are protected by copyright. This means you need permission from the creators of the materials before this information can be transmitted to students over the Internet. But there are exceptions to this. You will not need permission in the following circumstances:
- The teacher or school transmitting the instructional materials is the author or creator. He, she, or the school owns the copyrights.
- The copyrights to the materials have expired or otherwise entered the Public Domain.
- The nature and use of the materials qualifies as Fair Use.
- The nature and use of the materials is exempt from copyright law under a law known as the TEACH Act (discussed below).
Schools that offer distance education courses must comply with copyright law by getting permission to use copyright protected materials (see Getting Permission) or by falling within one or more of these exceptions. If a distance education program violates copyright laws and the copyright holder makes a legal claim, faculty, any staff involved, and the school may be subject to harsh legal remedies. See How Copyright Protects.
How Can Distance Education Comply with Copyright Law?
The easiest and safest way of navigating through the complexities of copyright law is to either create all instructional materials, purchase those materials offered on the market, or get permission to use materials created by others. But that is simply not practical for many schools. Most faculty do not write their own text books, so creating distance education courses from scratch may not be a viable option. Purchasing instructional materials may not be an option because there may not be anything on the market appropriate for some classes or the price exceeds budgets. The approach then would be to learn the exceptions to copyright law and develop the distance education program to fall within these exceptions. Finding materials in the Public Domain is not going to work for many classes because the information is out dated or obsolete. That leaves Fair Use and the TEACH Act. As with any matter that may affect legal liability of the school, any proposed guidelines for qualifying for Fair Use or the TEACH Act should be disclosed to the school legal counsel before starting the distance education program.
How Does Distance Education Qualify for Fair Use?
Distance education can apply fair use for the purpose of using materials in education, like any other medium. The same four factor analysis that is analyzed in print media applications will apply equally in distance education even though the TEACH Act is designed specifically for distance education. The TEACH Act is not intended as a substitute for fair use, but rather a complementary or other exception to the copyright laws that make legal use of copyrighted materials without permission. See the proposed fair use guidelines when determining if your distance education project meets the fair use criterion.
The TEACH Act
The vision or seed of the TEACH Act started in the Digital Millennium Copyright Act which directed the U.S. Copyright Office to submit recommendations for a law that would allow using copyrighted material in distance education without permission. In November 2002, the TEACH ACT or Technology, Education and Copyright Harmonization Act, was enacted into law. This new law repeals its predecessor, Section 110(2) of the Copyright Act which limited closed circuit TV teaching to a face-to-face classroom setting and limited the materials that could be displayed in this manner. With numerous conditions and requirements, the TEACH Act expands the kind of materials that can be displayed in distance education to entire performances of “nondramatic literature or music” and “reasonable portions” of other works. The intention was to balance the rights of copyright holders and the needs of educators and librarians to use copyright-protected materials in distance education.
What Can Be Used without Permission under the TEACH Act?
Generally, new section 110(2) permits the following:
- In a face-to-face classroom environment, you may display or perform any work that serves an educational purpose no matter how it is shown. This includes all still images, all music, and even movies. However, if you transmit works by close circuit TV, post online, or use any medium in which materials are shown to students outside a face-to-face environment, then you must show only “reasonable and limited portions” of the works.
- In transmissions to remote locations or distance education, entire performances of nondramatic literary works may be shown or displayed. Examples include reading poetry or short stories.
- In distance education, entire performances of nondramatic musical works may be shown or displayed. This is any music other than opera, music videos or musicals.
- In distance education, only “reasonable and limited portions” of any other works including audio-visual works may be shown or transmitted from a distance. This includes music videos, operas, and musicals.
- Any still image in its entirety or portions of displays that compare to displays used in face-to-face classroom environments may be shown or transmitted from a distance.
- Students receiving displays or performances of work are no longer restricted to the classroom. They may be at any location.
- Any works in an analog format that are not available in a digital format may be digitized.
- Not only can distance education transmissions be recorded and retained as provided by the old law, students can have access to the recorded transmissions for a brief period of time. Copies and storage incidental or necessary in digital transmission are also permitted.
There are many exceptions, limitations, and conditions that must be satisfied before universities may implement these new procedures in their distance education programs. Many universities—that operate for profit or are unaccredited—cannot apply the TEACH Act because they are specifically excluded. Qualified participants that use distance education in compliance with the TEACH Act are protected from liability from infringement claims against any transitory copies of works made in the process of digital transmissions.
Exceptions, Limitations, and Conditions
Indicative in any legislation that survives opposition and conflict by groups of radically different interests, the TEACH Act benefits to educators comes with a price tag. Many universities and colleges are excluded from applying the new procedures. Those that qualify must observe many limitations and satisfy many conditions as a prerequisite to using the new procedures. These are the salient exceptions, limitations, and conditions:
- The new procedures may only be used by a “government body or an accredited nonprofit educational institution.”
- The university or college must “institute policies regarding copyright.” Although somewhat nebulous, scholars believe this means that the university or college must establish policies requiring compliance with the TEACH Act when using the new procedures for distance education.
- Information about copyright law must be provided to “faculty, students and relevant staff members.” The information is further required to explain copyright law accurately. The language of the statute is similar to a provision of the Digital Millennium Copyright Act that limits a university’s liability as Online Service Provider.
- Students have to be notified that works used in distance education may be subject to copyright protection. Scholars suggest that a simple disclaimer or statement be included on the opening frame of the transmission.
- Distance education transmissions may only be shown to students enrolled in the course. If posted online it must be password protected or otherwise closed to visitors outside the class.
- In transmissions to remote location or distance education, you cannot use works for sale “primarily for performance or display as part of mediated instructional activities transmitted via digital networks.” This means any materials sold to educators to use in distance education.
- In distance education, you cannot use copies of any works you know or should know are illegal.
- In distance education, you cannot use any materials traditionally purchased by students such as textbooks, coursepacks, electronic reserves, and related materials.
There is nothing in new Section 110(2) that abrogates your right to use works under fair use in distance education. Even if works are specifically excluded in the new procedures, it may qualify as fair use and if so, be shown or displayed in distance education anyway. Caution is urged in the analysis of the fourth factor, commercial effect. Any use of works not specifically sanctioned by Section 110(2) should be considered beyond fair use if students are essentially getting a substitute for products they would normally purchase for a class.
For most colleges and universities, the materials used in distance education will now expand beyond the parameters that existed before new Section 110(2). But it will also be a more technical and complex procedure to learn and establish in order to use these materials. Distance education is now ready for the digital age.
There are other websites that explain the TEACH Act further and a few even have useful checklists to ensure compliance with all the conditions and limits. Here are links to those websites: