The Classroom Use Exception, the TEACH Act, and Digital Media

Each of these three cases has ties to projects proposed or already underway by scholars in rhetoric and composition. From their case studies, Fisher and McGeveran articulate several “obstacles to digital learning” (42). They explain the classroom use exception to fair use, which gives teachers additional freedom beyond fair use to use third-party content in classrooms for educational purposes. We've all, for example, probably heard that story about some loophole in copyright law that permits the photocopying of an article if the teacher is struck with inspiration to use it right before the class meeting. This understanding is correct; a spontaneity exception does exist, but the use of third-party content for digital materials -- blogs, wikis, web-based class projects -- is more legally fraught, even if the digital materials were only available to the students enrolled in the course. The classroom use exception is intended for face-to-face teaching which takes place within the walls of classrooms, not necessarily for hybrid courses, online courses, or homework assignments for a face-to-face course. The TEACH Act of 2001 addressed the incompatibility of the classroom use exception by no longer requiring students to be in the same location to use third-party content distributed by teachers. However, the act stipulated that the content must be integral to the course objectives, and that only accredited, nonprofit institutions were covered. Fisher and McGeveran critique the boundaries of the freedoms (47):

This bias excludes, for example, an adult education class offered by a nonprofit but unaccredited institution; asynchronous instruction and discussion that occurs outside of class sessions at preset uniform times; and even access to material by students in other related classes at the same institution.

Also, Fisher and McGeveran suggest, it would seem that DRM and the DMCA would supersede the TEACH Act, which says that teachers have to make sure the content isn’t available after the class session, thereby preventing it from being disseminated, which is not architecturally possible to do in online environments. Fisher and McGeveran conclude that as far as the TEACH Act is concerned:

Congress might well need to start from scratch. In particular, the across-the-board exclusion of asynchronous teaching and learning sacrifices one of the principal benefits of digital technology. Likewise, the limited conceptualization of education as tied closely to highly traditional academic institutions limits the statute’s effectiveness in the decentralized digital environment(96).

I agree that education ought not be bound up with institutions, and their observation certainly acknowledges some of the educational efforts online, such as academic weblogs and wikis created by individuals or groups not affiliated with one particular university.