Question: How much is the TEACH Act really used? How exactly can you prevent a student from keeping permanently or redistributing a copy of a copyright-protected work without faculty having an easy way to apply digital rights management to the file? Our LMS doesn't offer a way to prevent students from downloading PDF files. Maybe I'm missing something, but I think of the TEACH Act as being useless due to its high technological requirements.
Answer: I don’t think the TEACH Act is utilized by academic libraries and institutions as often as fair use, but that does not mean it can’t be useful to them! The Technology, Education and Copyright Harmonization Act was passed back in 2002 to help address copyright considerations in distance education. Found mostly in Section 110(2) of US copyright law, it provides options for lawfully making performances and displays of copyrighted works in distance education. The part you are referring to is one of the technological requirements of the TEACH Act and is found in Section 110(2)(D)(ii). It requires that the institution “applies technological measures that reasonably prevent retention of the work [being shared under the TEACH Act]. . . by recipients of the transmission . . . for longer than the class session and unauthorized further dissemination of the work . . . by such recipients to others.” This requirement is put into place for digital transmissions of works made in distance education, which could include the performance of a work such as a film or a sound recording. Here, the law tells us that the institution should take measures that reasonably prevent those accessing the work from retaining it or sharing it with others. For films and sound recordings, most institutions that are taking advantage of the TEACH Act do so by streaming these works. Savvy students may be able to find ways to capture these streams in order to make copies of the films or sound recordings that they can then retain after the class is over or share with others. However, as Congress recognized there might not be a way to prevent such actions they included some flexibility in the statute by directing institutions to make their best effort possible to prevent such actions.
The sharing of a PDF with students via a learning management system (e.g. Canvas or Blackboard) is generally not going to be considered a digital transmission unless it is a video or audio recording of someone reading aloud from it. As such, it would not be bound by this particular restriction.
The TEACH Act does have other technological requirements as well as institutional copyright policy/education requirements and requirements instructors must adhere to. You can read more about these in Section 110(2) of US copyright law. I would also recommend taking a look at the Original TEACH Act Toolkit developed by Peggy Hoon for the Louisiana State University Libraries. While the TEACH Act does set forward many requirements, if all are met by the institution and course instructors then it offers an option for lawfully making performances and displays of works as part of distance education.
For more information, check out last year's Copyright in Action: Considerations for Instruction webinar recording.
Click here for a copy of the handout.