This afternoon, I went to a simulcast of “Critical Challenges in Distance Education: Copyright Issues Online.” It was well worth my time, and provided a lot of information about the TEACH Act that was signed into being late last year. Since I’m team-teaching a couple of online courses this semester and will start teaching them on my own in the fall, I have an interest in this topic. I originally thought I’d blog the entire thing, but one of the panelists, Dr. Georgia Harper, has made the material available online. What she’s done is certainly far more thorough than anything I could put up in this space. Besides, she’s the manager of the Intellectual Property Section for the University of Texas System General Counsel. Better that you hear it from her than from a wandering graduate student. Her article, “The TEACH Act Finally Becomes Law,” is available here. It provides a breakdown of what is and isn't protected. She has also published “The Copyright Crash Course” online.

Basically, it seems to me that this act boils down to using appropriate excerpts of a work in an appropriate context. It’s bad to copy an entire book written by a living author and put it online. You wouldn’t do that in a meatspace class; you’d make your students go buy the book. Same deal for a web class. It is, however, OK to use “clips and snips” of a work when it suits your pedagogical agenda. Providing you do it according to guidelines, of course.

There are a couple of things do bear mentioning for my particular audience, though:

Those of you who rant about the panoptic and elitist aspects of WebCT would be advised to suck it up in those instances when you’re teaching university-affiliated courses. Using it or a similar program helps prove that you are 1) fully affiliated with an accredited non-profit educational institution and 2) password-protecting the information you put online. Both of these are pretty big factors in this Act. (Plus, that affiliation with your educational institution means that they should end up sharing any legal heat you take for using copyrighted materials, providing that you acted in good faith.) *

Fair Use will still play a major part in filling in the gaps of the TEACH Act. For instance, it does cover “display and performance” of video and audio excerpts as well as the digitizing thereof. It doesn’t cover supplemental texts in web-based classes, which is what those of us in my circle need. ("Supplemental" is defined as anything the student would read outside of a classroom - basically, what they would read as homework. If you're not performing the work - by reading it aloud, for instance - then it's supplemental.) Fair Use does cover this kind of material, providing that you keep the permissions in mind. If an infrastructure exists for gaining permission for this material, then you should use it. (Some university libraries will obtain permissions for you.) There’s also the Four Factor Test for Fair Use:
1) What is the purpose and character of the use? (commercial v. non-profit)
2) What is the nature of the copyrighted work?
3) What is the amount and substantiality of the portion used in relation to the work as a whole?
4) What is the effect of use upon the potential market for or value of the work?
This site provides some information put together by a joint committee from CSU, SUNY, and CUNY. It has a page that deals solely with permissions.

What do I think about this whole permissions thing? The anarchist punk redneck in me thinks I don’t need nobody to give me permission to do nothin’. Why should the procedure for using a text on the web be any different than it is for using it in a classroom? Copy that sucker and go. On the other hand, one does have to exist within university protocol, and I would like to have a job and not be sued. Those strike me as pretty good things. Apparently, that means learning to love permissions in my web course design.

*Yes, I know that intellectual property is theft. I think the Disseminary is excellent. Creative Commons serves a good and useful purpose. But until we all live in a different world and a more enlightened entity issues our paychecks, I'm afraid we’ll just have to deal with this sort of thing.