I admit, I am conflicted about the TEACH act, legislation enacted by President Bush in 2002 to help clarify what copyrighted materials could be used in online education. In fact, my feelings going into class were not positive. I agreed with Thomas Lipinski in his article "The Climate of Distance Education in the 21st Century" that "this act is a complex piece of legislation" whose full implications will not be known until court decisions have been made for clarification. The phrase that audiovisual material had to be shown in a "reasonable and limited quantity" worried me the most. I interpreted limited to refer to amount shown, meaning that under no circumstance could a full work be shown, no matter how reasonable such use might be in terms of education. I also worried about the view of class as a limited time course, divided into units that the bill calls "mediated instructional activities" and with material only allowed to be viewed within a time frame similar to class time. Along with Lipinski, I am concerned that this is another example of congress attempting to compare new modes to old modes in order to maintain profit. Indeed, Crews in "Distance Education and the TEACH act" states that this "provision is clearly intended to protect the market for materials designed to serve the educational marketplace".
So, I was surprised when I went to class and found out that librarians view this legislation in a positive light. But when I stepped back, I realized that it was I who was being perhaps a bit harsh. I had been working on deciphering licensing terms all week, and so was in a hyper critical mode reading about this act. I examined every word, wondering how would it help publishers and hurt libraries/educators. I had missed the statement in a briefing by the ALA that the Copyright Office even said "Fair use could apply as well to instructional transmissions not covered by the changes to section 110(2) recommended above. Thus, for example, the performance of more than a limited portion of a dramatic work in a distance education program might qualify as fair use in appropriate circumstances.” This removes some of my worry about the limited portion (although it then brings it back to Fair Use, which anyone reading this blog knows, is a pretty tricky issue). But, upon re-reading many of the articles that I viewed as too positive earlier, I can see that the TEACH does have its heart in the right place. It is trying to allow new technology to be used and it is trying to help education reach the most people. It is certainly an improvement over the previous law which only allowed distance education via broadcast video conferencing, students in one room and the teacher in another. This legislation is not totally focused on slowing taking away user's rights one by one.
The section mandating that materials not be stored upon a computer or able to be transmitted to others students "for longer than the class session" still worries me. I understand why they placed such a limit in here. It ties back to the fear of piracy, of movie copies being distributed across the entire internet in a matter of seconds if not protected. As Lipinski states "In Congress' view, copyright piracy on college campuses has reached epidemic proportions. Although little of the piracy is tied to curricular infringement, it consists of students engaging in peer-to-peer file exchanges" To Congress, this fear is real, and must be prevented by technological limitation such as stated above.
However, by tying it to a mode similar to that of face to face instruction, in terms of only being available for viewing during a limited period of time relating to class session, it limits the possibilities of this act to work with future technologies. Litman, in her book Digital Copyright frequently mentions that one of the major problems with copyright law is that it only looks towards the present and the past, not the future. As such, it does not adapt to change well. I am concerned that, by adding the words "class session" they are limiting themselves by using an old model and not truly reflecting the asynchronous nature of current and future online education. I know when I had a few classes online due the professor being at a conference, I stopped and started the video numerous times, due to life getting in the way. Often, this is the situation in online education, and one of the great things about it being not set at a certain location for a certain time. Would someone only be given a limited time period to watch a movie and then they cannot access it anymore? What happens if they need to refer to it for a paper or studying for a test? What happens if life indeed gets in the way of watching it all at one time, or even over the course of a day? Technology changes what can constitute a class session, and the language remains very unclear as to whether the TEACH reflects this.
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