In addressing performance rights for teaching students through distance education, three (3) sections of the Copyright Act are instructive: Section 110(1), Section 110(2), and Section 107.
1. Section 110(1) permits the display/performance of any work, regardless of medium, in the course of face-to-face teaching activities.
Performance rights for transmissions requires that the performance or display must be a regular part of systematic instructional activities, must be directly related and of material assistance to the teaching content, must be made primarily for reception in classrooms or places of instruction, and to persons whose disabilities or "other special circumstances" prevent attending class. Section 110(2) has limited application to courses offered over a digital network. It does not authorize the reproduction and distribution involved in digital transmission.
2. Section 110(2) addresses the forms of distance education existing when the statute was enacted in 1976, and authorizes transmission of still images of non-dramatic, non-audiovisual literary works and music to persons who have special circumstances that prevent them from attending class, and to classrooms or places devoted to instruction.
There are no transmission rights in dramatic or non-dramatic audiovisual works (rented or purchased videos, and tapes made from broadcast television). Section 110(2) does not begin to address the growing demand on college and university campuses that class materials be available whenever and wherever students wish to access them.
3. Section 107 addresses fair use. It is important to understand that fair use does not apply just to copies. It also applies to:
- Making copies of copyrighted works;
- Making derivative works (digitizing images);
- Distributing works, including electronic distribution; and
- Displaying and performing works publicly
Below are guidelines for distance learning. These guidelines attempt to apply fair use principles in order to bridge the gap between what is authorized for face-to-face teaching and what is authorized for distance education. These guidelines may prove helpful in making assessments in accordance with basic fair use principles.
The guidelines address (1) live interactive distance learning classes; and (2) faculty instruction recorded without students present for later transmission. The guidelines do not cover web-based delivery of distance learning over a computer network because the area is so unsettled.
1. Only students enrolled in an eligible institution may view the transmission;
2. Works performed must be integrated into the course, must be part of systematic instruction, and must be directly related and of material assistance to the teaching content of the transmission; the performance may not be for entertainment purposes;
3. Transmission must be over a secure system with technological limitations on access to the class or program such as a PIN number, password, smart card, or other means of identification of the eligible student;
4. Reception must be in a classroom or other similar place normally devoted to instruction or any other site where the reception can be controlled by the eligible institution; the institution must utilize technological means to prevent copying of the portion of the class session that contains performance of the copyrighted work;
5. Performance of an entire copyrighted work or a large portion thereof may be transmitted only once for a distance learning course; for subsequent performances, displays or access, permission must be obtained;
6. The institution receiving the transmission may record or copy classes that include the performance of an entire copyrighted work, or a large portion thereof, and retain the recording or copy for up to fifteen (15) consecutive days (instructional days); access to the recording or copying for such viewing must be in a controlled environment such as a classroom, and the institution must prevent copying by students of the portion of the class session that contains the performance of the copyrighted work; if the institution desires to retain the recording or copy for a longer period of time, it must obtain permission or delete the portion which contains the performance of the copyrighted work;
7. The transmitting institution may reproduce and provide access to copies of the transmission containing the performance of a copyrighted work; it may also exercise reproduction rights;
8. Permission from the holder of the copyright is required in the following circumstances:
- Commercial uses: Any commercial use, including a situation where an educational institution is conducting courses for a for-profit corporation for a fee (e.g. supervisory training or safety training courses for the corporation's employees;
- Dissemination of recorded courses: An institution offering instruction via distance education pursuant to these guidelines desires to further disseminate the recordings of the course or portions that contain performance of a copyrighted work;
- Uncontrolled access to classes: An institution desires to offer a course or program that contains the performance of copyrighted works to non-employees; and
- Uses beyond the 15-day limitation: An institution wishes to retain the recorded or copied class session that contains the performance of a copyrighted work not covered in Section 110(2).
A faculty member should utilize the guidelines to assure that use of the work does not infringe upon an owner's copyright. If the guidelines do not apply, permission must be sought from the copyright owner.
Faculty shall post a notice at the beginning of the course or portion of a course delivered through distance education prohibiting the copying of copyrighted materials.