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.