Submission Date:
Question:
Does the TEACH Act allow a school to stream entire movies, if the movies could otherwise be shown in their entirety in class?
Answer:
The TEACH Act was adopted in 2002 to enable the “digital transmission” of otherwise copyright-protected content for educational purposes.
Schools meeting the Act’s requirements[1] can stream readings of poetry, images of paintings, and lines of computer coding, without fear of infringement claims. This allows regular teaching activities—like analyzing a poem, assessing a painting, or teaching HTML--to happen online, without fear that the duplication or transmission of the copyright-protected content will bring a lawsuit.
The TEACH Act positions online learning to use content as it would be used in a traditional classroom—as well as to novel and innovative things via distance learning technology.
But there are a few aspects of the “traditional classroom” the TEACH Act cannot replicate, and a critical one is: watching entire movies.
Per Section 110(1) of the Copyright Act, entire movies can be shown during an in-person class (if they are part of the curriculum…the law doesn’t allow a trigonometry class to kick back with “Wonder Woman” after finals are shown, unless they are calculating the angles of the bullets bouncing off her bracers).
But there is no equivalent exception in the TEACH Act for streaming an entire video as part of an online course.
In fact, in very plain language, the Section 110(2) of the Copyright Act states that only a “portion” of a film can be shown. As stated right here:
…the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission…. [emphasis added].
Okay, I admit it: it’s possible the “very plain language” is only plain to lawyers (and copyright scholars—many of whom are librarians--who leave some lawyers in the dust on these issues).
The “House Report” [2] below, explains how this language means performance of an entire movie is not allowed:
The exemption for instructional broadcasting provided by section 110(2) would apply only to “performance of a nondramatic literary or musical work or display of a work.” Thus, the copyright owner’s permission would be required for the performance on educational television or radio of a dramatic work, of a dramatico-musical work such as an opera or musical comedy, or of a motion picture. [emphasis added]
So what does this mean? Schools that want to stream entire movies as part of an online course—even if those movies could be shown during an in-person class--should not rely on the TEACH Act as their protection from infringement.[3]
What are the other solutions?
- The institution can obtain a license to stream the movie(s);
- The institution can create a “hybrid” course (part online, part in-person) that shows the movies in a physical class, as authorized by 110(1);
- Students can be required to subscribe to a streaming service or other licensed source of the movies, just like they rent or buy textbooks;
- In some instances, fair use might apply, BUT that should be determined on a movie-by-movie basis and documented very carefully, since simple academic need is generally not a defense to infringement.
Thank you for this question!
[1] There are a lot of them, including the requirement that the material used is presented “…as an integral part of a class session offered as a regular part of the systematic mediated instructional activities….”
[2] This language can be found at https://www.law.cornell.edu/uscode/text/17/110.
[3] The TEACH Act is also comprised of Copyright Act §112, but as the “House Report” for that section says “[Since the] performance exemption provided by section 110(2) applies only to nondramatic literary and musical works, there was no need to exclude motion pictures and other audiovisual works explicitly….” [emphasis added].
