1. Tomas A. Lipinski (2003) “The Climate Of Distance Education In The 21st Century: Understanding And Surviving The Changes Brought By The TEACH (Technology, Education, And Copyright Harmonization) Act Of 2002” Journal of Academic Librarianship 362, (362-374).
2. ARL Issue Brief: Streaming of Films For Educational Purposes
(http://www.arl.org/bm~doc/ibstreamingfilms_021810pdf.pdf)
3. Russell Complete Copyright pg. 200-201: “CONTU Guidelines on Photocopying under Interlibrary Loan Arrangements (1978)”
Guest Lecture by Tomas Lipinski
The TEACH Act was created in 2002 in order to address issues surround appropriate materials for distance education. This act is specifically for accredited, non-profit educational institutions and addresses what may or may not be performed or displayed “in the classroom”. The TEACH Act specifically builds off of sections 110(2) and 112(f) of the 1976 Copyright Act. Tomas Lipinski attempts to address how to wade through the overly complicated and ridiculous nature of the act, while the ARL (ALA really), concisely and succinctly addresses the issues of what kinds of film may be streamed for educational purposes. These two readings are like night and day in terms of readability and comprehension, which is indicative of the unnecessary complicated mess that is copyright legislation.
Lipinski is much better in person than on the page, at least as far as this topic is concerned. In his article, he speaks around the issues instead of addressing them directly. At least, that was my initial impression. It could also be that he assumed some prior knowledge of the TEACH Act, which I did not have. Moreover, as the nature and language of copyright legislation can be quite convoluted, how might one really write about it without assuming some kind of prior knowledge? I think it would have been better to read the ARL brief first. In any case, I must get this out of the way before I burst. The process of converting an analog copy of a resource to a digital copy is called digitization, not digitalization. Digitalization refers to the process of administrating digitalis, which was once used to help patients with heart problems. I looked this up in several online dictionaries just to be sure. As someone who digitizes sound recordings on a regular basis, I needed to make sure that I have been using the correct terms, which Lipinski, a respected professor with a law background, apparently has not. I was really hoping he would change it for his talk, but alas, he did not. I needed to avoid eye contact when he had a large slide with the incorrect term as a header in bold projecting on the screen. Okay, I got that out of my system. On to the act.
The TEACH Act is a complicated mess addressing the use of copyrighted materials within distance education. The act assumes that distance education is held in discrete installments, with content being available for a limited length of time in a lecture-like package. My first question in learning this was what about electronic reserves and courseware, like Desire to Learn (Learn@UW)? Could an online meeting space, like a Learn@UW site be considered as a face-to-face meeting? The ARL seems to think so, by arguing that an online meeting space is a virtual classroom. Face to face meetings, as addressed by Lipinski, have different requirements, or exemptions, than online places. For example, a professor may not display more materials online than in the classroom. But what if the classroom is online? That is apparently where Section 110(2) comes into play.
In addition to adding the accreditation requirement for online/distance education, thereby making it quite difficult for home schooling communities to share resources online, Section 110(2) also replaces the physical meeting space with an online one. Moreover, the following types of materials are exluded from this section, meaning that in order to use them online, the instructor or content provider must find a different way in which to use them, such as under Fair Use:
Material excluded
1. curricular materials: produced, marketed, displayed for mediated instructional activities
2. supplemental materials: in digital form, such as electronic course-packs, e-reserves, and digital library resources, unrelated background materials, must be REALLY tied into the course
3. “bootleg” materials: must be lawfully made, or at least know that it is not unlawfully made; for 110(2), must be lawfully made AND acquired, the INSTITUTION must know, not just the faculty member or student
Basically, the materials provided online under Section 110(2) must really truly be tied into the course, not made specifically for instructional activities (again, poor home schoolers), and the institution must know that the materials are not unlawfully made. What really gets me on this is the issue of supplemental materials, such as e-reserves and electronic course-packs. How are distance education students supposed to get to the copy shop to purchase a course-pack that has gone through the Copyright Clearance Center, for example?
I was also wondering about making digital copies of materials under the TEACH Act. Is that permissible? It would have to be if that resource was to be put online. According to Lipinski, Section 112(f) allows for making a digital copy in order to stream a resource. The kicker is, however, that the institution must make a new digital copy for each use, even if it is for a different course and used in a different matter. This seems to go against other copyright legislation, as by following Section 112(f), the institution is making multiple copies (systematic?) of a copyrighted resource. Furthermore, it is a waste of time for the employee (me). However, as Lipinski argued nicely in class, you may take the TEACH Act, especially Section 110 to a certain point, and then switch to Fair Use, as if the institution can successfully argue that the intent is Fair Use, there may be no monetary damages to pay or take down provisions. Furthermore, there is a history of case law for Fair Use, but not for the TEACH Act.
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