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by Angela J. Rabatin
(Associate Professor, Accounting and Business Management)

 Educators have historically been guided by the complex copyright concept of “fair use” when employing the work product of others for instructional purposes. With the advent of online education, a new perspective was added to the matter of copyright infringement, making it even more challenging. 

To address the issue, Congress passed the Technology, Education, and Copyright Harmonization Act  (TEACH Act). It is one option available for the lawful use of copyrighted materials in distance education. The Act sets forth very specific terms under which pieces of text, images, sound, and other works may be included in distance education courses. If a use does not fit the conditions in the Act, one can then opt for either purchasing a license from the copyright owner, or turning to an analysis of whether the use is a “fair use.” (Up to $150,000 can be awarded for each separate act of willful copyright infringement.)

Fair use of a copyrighted work addresses four factors:

      (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.

(4)    The effect of the use upon the potential market for or value of the copyrighted work. 

The fair use test above is subject to interpretation, but some believe the balance is tipped in favor of a nonprofit educational institution that makes limited use of the protected work. 

With distance education, however, the use of the Internet to provide course content caused concern among copyright owners. In light of the widespread use and growth of online education, copyright owners believed their work would be more widely disseminated than that which occurs in face-to-face courses. Seventy percent of traditional two-and four-year colleges and universities were offering online courses in 2000, as compared to forty-eight percent in 1998.

If professors make copyrighted works available to students on the Internet, how could copyright owners protect against unauthorized reproduction and distribution of their work? In a face-to-face class, the thought is that fair-use of a copyrighted work would impact the market for a creator’s work only to the extent of the students enrolled in the class.

Since copyright protection is intended to promote the growth of knowledge and innovation by providing the creators with the rights—and incentives—to create such works, market-erosion was recognized as a valid concern. As such, the use of copyrighted materials in distance education courses faced a different, more limiting standard, than that of works used in the traditional face-to-face classroom. 

After much effort, the TEACH Act of October 2002 was enacted to expand the scope of use of copyrighted materials for distance education courses. Notably, the use is not as generous as the “fair use” application for face-to-face courses. For example, audiovisual works may only be shown as clips in “reasonable and limited portions” under the Act. Still, the Act offers the potential to use pedagogical tools online that previously were likely subject to expensive licensing fees.

Scholars say that as a result of this relatively new law enacted to facilitate the vast offerings in distance education, several choices exist for colleges and universities: (1) obtain a license to use the work; (2) rely on fair use; (3) rely exclusively on the TEACH Act; or (4) rely on a combination of fair use and the TEACH Act.

In the end, the aim is to provide quality online education while balancing the pedagogical interests of online students and educators, with the copyright owners' interests in preserving their markets.

The American Library Association has provided excellent background materials and guidelines for meeting the requirements of the Act, available at

At this site, see also: TEACH Act Best Practices using Blackboard™.

For full text of U.S. Copyright Law, see
(All quotations above are taken from this online copy of the law.)


The Instructional Area Newsletter, Volume 19, No. 3

Spring 2004