In order to encourage compliance with the requirements of TEACH (Technology, Education, and Copyright Harmonization Act, 2002), the following guidelines should be adopted:
Factors in determining fair use:
1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.
Allowed to be transmitted:
1. All types of materials may be displayed, but only in an amount comparable to what is typically displayed in a live classroom setting.
2. Complete versions of nondramatic literary or musical works may be performed.
3. Only limited and reasonable portions of any other work such as literary and musical works, audiovisual works, and sound recordings may be performed.
Not allowed to be transmitted:
1. Textbooks, course packs or other material in any media, copies or phonorecords which are typically purchased or acquired by students for their independent use and research that would be used in one or more class session.
2. Works that are marketed primarily for use in a digital classroom.
Report on Copyright and Digital Distance Education
The American Association of University Professors (AAUP) has created some guidelines for distance education courses and intellectual property.
Ownership of Materials
The materials created by faculty members for distance education courses should be treated in exactly the same fashion as materials created by faculty members for traditional courses.
Changing and Updating Materials & Re-transmission of Courses
The AAUP Statement on Distance Education asserts that a "teacher's course presentation should not be recorded without the teacher's prior knowledge and consent. Recordings of course material are academic documents, and thus, as with other works of scholarship, should have their author or creator cited accordingly." The Statement on Copyright asserts faculty ownership of the copyright of traditional academic works "regardless of the physical medium" in which they appear.
Courses and course presentations shall not be recorded without prior knowledge and consent of the faculty member. Such recordings are not to be re-used or revised without the written consent of the faculty member.
Copyright of recordings of courses and course presentations shall be owned by the faculty member(s) as in the case of traditional course materials.
The faculty member (or an appropriate faculty body) who creates the course (or adapts a pre-existing course) for use in distance education shall exercise control over the future use, modification, and distribution of recorded instructional material and shall determine whether the material should be revised or withdrawn from use.
When materials are displayed or performed to students at remote locations, or for that matter "transmitted" to students at any location, the rules change. The TEACH Act and was revised in 2002 to address issues of online education. The new law allows posting of materials to servers, but only subject to a long list of conditions. Many colleges and universities are struggling with this statute, and many rely instead on fair use or permissions.
You might find this Checklist useful in determining how to use resources in distance education.