Copyright Office Guidance on Digital Learning, First Sale and Fair Use

There is perhaps no legal issue that is more “front of mind” and also more obtuse that whether or not a teacher can broadcast or publish a textbook or other copyrighted article over their distance learning technology. On May 15, 2020, the Copyright Office in Washington, DC issued a 22-page letter (Click here to read a copy: 20200515-senudall-response-national-emergency-library ) which addresses these issues — the sheer length of the document tells you that this is not a topic for the faint of heart, or even a non-lawyer.

Importantly, the Office points out the application of the 2002 Technology, Education, and Copyright Harmonization Act (“TEACH”) act which explicitly allows the use of copyrighted materials when used for distance learning”

“pursuant to the TEACH Act, if a school district meets the requirements, an elementary school teacher may display a picture book heis reading in a video to be viewed by all students in his class because it is typical for elementary school teachers in live classroom settings to display all pages of a picture book. Likewise, a university professor may digitally display limited movie clips to illustrate a particular concept relating to a course, just as she would do in a live setting,if the university meets the requirements of the TEACH Act.”

(See Pages 6-7 of the Guidance.) Of course, those “requirements” are not so simple for laypersons to easily understand.   Those requirements also are subject to judicial evaluation, or evaluation by a jury.  (See (Los Angeles Times, April 1, 2020, Appeals Court Rules for Choir Teacher)

The main purpose of this lengthy letter was to chide the Internet Archive for failing to contact copyright owners before releasing thousands of documents in the “National Emergency Library”.   The Copyright Office seems to approve how the Internet Archive is stepping back from the massive release of material.  While it fails to give a simple roadmap to educators for going forward, but it does give many examples of cases and expert thinking as to what can and cannot be done.

If you are an educator and you are uncertain as to whether or not your online materials meet the requirements, contact the Shining Law Firm so we can walk you through the elements needed to comply.

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