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Challenges: Fair Use Available
Although the revisions to Section 110(2) hav been the law since 2002, it is probably fair to say that only a handful of institutions have provided a downstream control solution for their faculty (that is, preventing the students from having an accessible copy of the work after logging out of the online environment). Even with a solution in place, it would be difficult to identify faculty who actually rely on its provisions to place materials in their online course, for one reason or another. The more likely scenario is that materials are being used pursuant to the fair use doctrine.
Fortunately, Section 110(2) does not supercede fair use; that is, if this section does not work for your purposes, fair use is still available. This is specifically stated in the Senate Report (107-31) accompanying the legislation as well as in the act itself:
Nothing in this Act is intended to limit or otherwise to alter the scope of the fair use doctrine. As the Register's Report explains: "Fair use is a critical part of the distance education landscape. Not only instructional performance and displays, but also other education uses of works, such as the provision of supplementary materials or student downloading of course materials, will continue to be subject to the fair use doctrine. 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." Specifically, this legislation is enacted in recognition of the following:
a. the fair use doctrine is technologically neutral and applies to activities in the digital environment; and
b. the lack of established guidelines for any particular type of use does not mean that fair use is inapplicable.
Indeed, given the numerous and rigorous requirements of the TEACH Act, fair use will continue to play an essential and pivotal role in facilitating the use of copyrighted materials within distance learning efforts.