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The TEACH Act [or §110(2) of the Copyright Act], like other sections of the Copyright Act, uses many terms that are specifically defined. These terms may be "officially" defined within the TEACH itself or within the definitions section of the Copyright Act; other times the terms may be explained or elaborated on in the text of the accompanying Senate Report.
For ease of use, these terms of art have been collected here and intertwined with the rest of the Toolkit.
TEACH Act Vocabulary
Measures that do not cause the destruction of or prevent themaking of a digital file leave the work in accessible form. For example, if something is merely encrypted and the recipient is given the key, then it is in accessible form after that.
For a post secondary educational institution, accreditation is as determined by a regional or national accrediting agency recognized by the Council on Higher Education Accreditation or the U.S. Department of Education.
[Note from Senate Report: Institutions qualify for accreditation for TEACH purposes at the institutional level (not the course level). This means that all courses at a qualifying institution are eligible to use TEACH whether or not they are part of a degree or certificate granting program.]
The legislative history indicates that this phrase does not mean that the instructor is the only one who can post the materials to be performed or displayed. Someone enrolled in the class can also post as long as there is actual supervision by the instructor, i.e., not in name only. 'Actual supervision' does not require constant or real-time supervision or prior approval.
A class session is generally that period during which a student is logged on to the server of the institution making the display or performance. It is likely to vary with the needs of the student and with the design of the particular course. Class session does not mean the duration of a particular course (i.e., a semester or term), but rather is intended to describe the equivalent of an actual single face-to-face mediated class session.
To display a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.
Literary works are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.
Mediated instructional activities are activities that use such [permitted] works
• As an integral part of the class experience
• Under the control or actual supervision of the instructor
• In a manner analogous to performances and displays in live classroom settings
According to the Senate Report, such activities must use the works as part of the course rather than ancillary to it. Thus, the TEACH exemption would not include supplemental reading such as coursepack materials. The report also indicates that e-reserves are not included if they are not analogous to the performances and displays of a live classroom setting.
The Copyright Act does not define 'nondramatic' or, for that matter, 'dramatic'. According to Nimmer, who has canvassed case law, a dramatic work is "'a written or literary work invented and set in order' in which the narrative is not related but is represented by dialogue and action." It is "a work in which the narrative is told by dialogue and action, and the characters go through a series of events which tell a connected story… " Fundamentally there seem to be but two essential elements for a dramatic composition: (1) that it relate a story, and (2) that it provide directions whereby a substantial portion of the story may be visually or audibly represented to an audience as actually occurring, rather than merely being narrated or described."
This requirement is not intended to impose a general requirement of network security. Rather, it means that recipients should be identified and the transmissions limited to such identified authorized recipients.
To perform a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.
To perform or display a work "publicly" means -
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
As used in TEACH, the 'reasonable and limited portion' requirement applies to the performance of any type of work (other than nondramatic literary or musical works which can be performed and transmitted in their entirety). In determining what is reasonable and limited one should take into account both the nature of the market for that type of work and the pedagogical purposes of the performance. [from Senate Report]
For displays of works, the amount allowed in TEACH is the amount that would have been used in a live classroom setting.
This requirement does not impose a duty to guarantee that retention and further dissemination will never occur. Nor does it imply that there is an obligation to monitor recipient conduct. Moreover, the 'reasonably prevent' standard should not be construed to imply perfect efficacy in stopping retention or further dissemination. The obligation to 'reasonably prevent' contemplates an objectively reasonable standard regarding the ability of a technological protection measure to achieve its purpose. Examples of technological protection measures that exist today and would reasonably prevent retention and further dissemination, include measures used in connection with streaming to prevent the copying of streamed material, such as the Real Player "Secret Handshake/Copy Switch" technology discussed in Real networks v. Streambox, 2000 WL 127311 (Jan. 18, 2000) or digital rights management systems that limit access to or use of encrypted material downloaded onto a computer.
To transmit a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.
Works covered by this are just what it says - digital educational materials. It does not apply generally to all educational materials, all materials with educational value, or those developed and marketed for use in the physical classroom.