The TEACH Act amended the Copyright Act teaching exemption found at 17 U.S.C. § 110(2) to permit certain performances or displays of copyrighted works in a distance learning environment. In order for the use of copyrighted materials in distance education to qualify for the exemptions under the TEACH Act, the following criteria must be met:
As a general matter, the posting of textual materials for use by an online class is covered by Fair Use, and the four factors of fair use should be analyzed before posting such materials into your class site.
Copyright law provides educators with a separate set of rights, in addition to Fair Use, to display (show) and perform (show or play) others' works in the physical classroom. These rights are in Section 110(1) of the Copyright Act and apply to any work, regardless of the medium. Because this section of the Copyright Act was meant for face-to-face teaching and not for distance education, online educators were at a disadvantage. When enacted in 2002, the TEACH Act (Technology, Education, and Copyright Harmonization) expanded the scope of educators' rights to perform and display works and to make the copies integral to such performances and display for digital distance education. But there is still a considerable gap between what the statute allows for face-to-face teaching and for distance education.
It is also important to note that the TEACH Act does not supersede fair use. The TEACH Act provides support for use of certain materials in an online environment but fair use may still be the best path to the desired outcome. Online instructors should also be mindful of the existence of any licensing agreements that may determine, irrespective of copyright exemptions, how digital materials may be used.