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Copyright: Class Performances, Displays, & Distance Learning Performances

It's Not Always About Fair Use: Section 110

Class Performances & Displays

Classroom Performances

Section 110(1) of the Copyright Act is a broad exemption that permits faculty members to perform and display entire copyrighted works in a face-to-face classroom without seeking permission from the copyright owner. For example, in the course of instruction, students, and teachers may sing a copyrighted work, perform it musically or view a motion picture. There are certain conditions that must be met:

  1. Students and teachers must be simultaneously present in the same classroom or other place normally devoted to instruction; the work may not transmitted beyond the classroom;
  2. No members of the public or students not enrolled in the course may view or hear the performance or display;
  3. If the work performed is a motion picture or other audiovisual work, the copy must be a lawfully made copy.

Distance Learning Performances

Distance Learning Performances

Section 110 of the Copyright Law distinguishes between what can be performed in the classroom and what can be transmitted. This results in a gap in legal authority to perform certain works for distance learners (www.copyright.gov/title17/92chap1. html#110). The exemptions available for classroom performances and displays do not allow teachers to transmit or put the same performances on their web page or in online course material, because these media are not considered “face-to-face teaching”. Section 110(2) deals with any transmission of a performance or display as a broadcast or an online portion of a course.

The TEACH Act in 2002 amended Section 110(2) of the Copyright Act to provide an exemption for certain distance learning activities. This exemption carries a detailed set of requirements, largely for the university. Useful descriptions of the TEACH Act requirements may be found at www.ala.org/Template.cfm?Section=distanced& Template=/ContentManagement/ContentDisplay.cfm&ContentID=25939#newc. While there are many technical requirements, many more uses of material are allowed. The amount to be played is restricted to "reasonable and limited portions" and display of any work is limited to "an amount comparable to that which is typically displayed in the course of a live classroom session."

Faculty who cannot meet all of the TEACH Act requirements, may be able to rely on fair use, if the statutory four factor test is satisfied. Otherwise, faculty should obtain permission to use the copyrighted material in the video of the class session (Harvard University, Office of the General Counsel, Copyright and Fair Use web page, ogc.harvard.edu/pages/copyright-and-fair-use).

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