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The TEACH Act contains numerous requirements that must be met before it authorizes the transmission of the performance or display of a copyrighted work without permission of the copyright holder. There will be many instances where the requirements cannot be met for one reason or another. Does this mean the proposed use of the work is prohibited absent permission of the copyright holder?
No. The Senate Report (107-31) accompanying TEACH specifically states:
Nothing in this Act is intended to limit or otherwise to alter the scope of the fair use doctrine. As the Register's Report explains: "Fair use is a critical part of the distance education landscape. Not only instructional performance and displays, but also other education uses of works, such as the provision of supplementary materials or student downloading of course materials, will continue to be subject to the fair use doctrine. Fair use could apply as well to instructional transmissions not covered by the changes to section 110(2) recommended above. Thus, for example, the performance of more than a limited portion of a dramatic work in a distance education program might qualify as fair use in appropriate circumstances." Specifically, this legislation is enacted in recognition of the following:
a. the fair use doctrine is technologically neutral and applies to activities in the digital environment; and
b. the lack of established guidelines for any particular type of use does not mean that fair use is inapplicable.
Indeed, given the numerous and rigorous requirements of the TEACH Act, fair use will continue to play an essential and pivotal role in facilitating the use of copyrighted materials within distance learning efforts.
For information about fair use, see