Distance learning has become an increasingly popular means of teaching educational topics to students on-line in undergraduate, graduate and professional development venues. Such distance learning classes strive to match the face-to-face classroom learning experience, which often incorporate display of copyrighted materials,1 in particular digital formatted works, such as photographs, sound recordings and movies to supplement and fortify the learning experience. However, the rights of the copyright owner must be respected in view of Federal Copyright Laws (i.e., the Copyright Act2).

Use of copyrighted works for educational purposes is addressed in a broad sense in Section 107 of the Copyright Act which identifies a “fair use” defense to copyright infringement. Establishment of a “fair use” defense is a fact intensive effort that must be tailored to each individual situation. For example, Section 107 of the Copyright Act requires careful case specific consideration of: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Rather than having to undertake such a fact intensive effort to defend copyright infringement, Section 110(a) of the Copyright Act promulgates a long standing “safe harbor” provision which allows the performance or display of a copyrighted work “by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom.”3

While Section 110(a) provides a “safe harbor” for use of copyrighted works in a face-to-face classroom setting, until the TEACH Act was codified in 2002, the law was not clear regarding use of such works in distance education settings. As a result, educators who used copyrighted works in distance education format risked infringement and/or had to rely on the fact intensive “fair use” defense, because such an educational format could be viewed as not being a face-to-face classroom setting.

Fortunately, Congress enacted the TEACH Act4 (Section 110(2) of the Copyright Act), extending the “safe-harbor” provisions to distance education. Thus, rather than relying on the fair-use defense to copyright infringement, the TEACH Act can be implemented in a checklist type manner. Such a checklist should address all of the TEACH Act requirements including whether: 1) the institution is a nonprofit accredited educational institution; 2) the copyrighted materials are directly relevant to the course; 3) whether controls are in place to limit access to only those students enrolled in the course; 4) only reasonable and limited parts of dramatic literary, musical, or audiovisual works are utilized; and 5) controls are in place to limit the students’ ability to retain or further distribute the materials. In addition, the checklist should address provisions of the Digital Millennium Copyright Act5 to ensure that the prohibition on use of encryption circumvention methods and devices is complied with.

Compliance with the “safe-harbor” provisions of the TEACH Act, for example by developing a comprehensive checklist that is consistent with the Copyright Act, should be implemented to ensure that educators who offer distance education programs are protected from the rough waters that could be encountered through copyright infringement actions.