Copyright

U.S. law provides an exception to copyright protection for educational uses. This means that if your use meets the requirements of the educational exception you can use the material without the copyright holder's permission.

There are specific requirements which must be followed, and the requirements are different for in-person and online instruction. The education exception is not exclusive -- if your use does not satisfy the requirements of the education exception, but satisfies another exception to copyright law (such as fair use), you can still use the work.

Under 17 U.S.C. §110(1) "instructors or pupils" are allowed to "perform or display" a work "in the course of face-to-face teaching."¹ This exception only applies if the institution is a "nonprofit educational institution" and must take place "in a classroom or similar place devoted to instruction." There is an additional requirement for movies (or other audiovisual works), that the copy being used must have been lawfully made (and the person "responsible for the performance" must not have known, or had reason to know, that the copy was not lawfully made).

Important Factors:

This exception only applies:

• to the "performance" and "display" rights of a copyright holder -- it does not permit reproduction, distribution, or preparation of derivative works;
   
• to a performance or display which occurs as part of "face-to-face teaching activities" -- this exception does not permit a performance or display for entertainment purposes; and
   
• in a "classroom or similar place devoted to instruction" -- it does not apply in a general location.

Footnote 1:

17 U.S.C. §110(2) is also known as the TEACH act.² Under 17 U.S.C. §110(2), display or performance of a work which meets certain conditions and limitations for online education is permitted. There are more restrictions, and requirements, for use of a work under this exception than apply to use of a work for face-to-face education.

Limitations

This provision does not permit use of 

• works "produced or marketed primarily" for use in distance education; or
   
• works "not lawfully made and acquired" if the body transmitting the work "knew or had reason to believe" it was not a lawfully made copy.

What is Permitted

What the statute permits depends on the type of work, and the use being made of the work. It permits the following use in an online class:

• performance of a "nondramatic literary or musical work";
   
• performance of "reasonable and limited portions" of other works;
   
• display of "an amount comparable to that which is typically displayed" in a face-to-face class.

Limitations

For the exception permitting performance or display in distance education to apply, the performance or display must be:

• "at the direction of", or "under the actual supervision of" the instructor;
   
• "an integral part" of the class, which is offered "as a regular part" of the institution's instruction; and
   
• "directly related and of material assistance to" the educational purpose of the transmission.

Institutional Requirements

The statute also includes technical requirements that the institution / class must comply with. The institution must

• limit the material to enrolled students;
   
• have copyright policies, and provide faculty, staff and students information regarding copyright;
   
• provide students with notice that "materials used in connection with the course may be subject to copyright protection"; and 
   
• apply technological measures to "reasonably prevent" (1) "retention of the work" and (2) unauthorized further dissemination of the work."

Footnote 2: