I'm not surprised. Cornell University along with the American Association of Publishers has developed a set of copyright guideline which states that the same fair use principles apply for electronic copies of documents placed in course management systems as do for print copies. In other words, it's not fair use to merely put electronic copies of texts in a password protected website. The copyright clearance center has a brochure outlining this new policy.

As I said, I'm not surprised. I predicted this in my dissertation, "The Future Is Open" for Composition Studies: A New Intellectual Property Model in the Digital Age. I've included the relevant text below for those that are interested:

In defining five basic changes to copyright law that the TEACH Act permits, Laura Gasaway suggests that

it removes the concept of the physical classroom and recognizes that a student should be able to access the digital content of the course wherever he or she has access to a computer. (82).

This seems to be a common interpretation of the TEACH Act, that it provides for the use of digital texts in all class types: face-to-face, hybrid, and purely online distance education classes. For example, Patricia McClary, the Associate University Counsel at Cornell University, informed all faculty and staff that the then new TEACH Act provided usage guidelines for “materials prepared for at-home use by students enrolled [in] courses taught in traditional classroom settings as well as distance learning courses.” Similarly, Kenneth Crews explains in a FAQ provided by the ALA that the TEACH Act does indeed apply to digital materials included with “web sites or web tutorials” that “supplement the ‘live’ classroom” (“The TEACH Act”).

However—and perhaps my pessimistic skepticism is because of my similar pessimistic understanding of current intellectual property events and legislation—these interpretations of applying the TEACH Act to face-to-face traditional classes which use digital technology to distribute copyrighted materials are based on some unclear terminology in the relevant section of Title 17 regarding what is a class session. Even Crews has admitted that there is “no explicit definition of a ‘class session’” (Crews “Copyright and Distance” 27). The language in the relevant section compares the allowable use instance to that of a “live classroom session”:

the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission, if—

(A) the performance or display is made by, at the direction of, or under the actual supervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of a governmental body or an accredited nonprofit educational institution;

Once again, further clarification of the term “mediated instructional activities” compares the use to a live classroom. An analogy does not necessarily imply inclusion:

In paragraph (2), the term “mediated instructional activities” with respect to the performance or display of a work by digital transmission under this section refers to activities that use such work as an integral part of the class experience, controlled by or under the actual supervision of the instructor and analogous to the type of performance or display that would take place in a live classroom setting.

If one interprets the relevant sections from a copyright owner’s perspective, the TEACH Act seems to imply that these uses are granted for distance education courses in which an online activity is a substitute for a face-to-face class session. Would digital texts posted to a course website to be read outside of a “live session” of the class qualify under this interpretation? Seemingly in contradiction to the FAQ Crews authored on the ALA website, Crews notes that in purely distance education classes, because of the live session language, the TEACH Act may exclude works normally meant to be used outside of the classroom: “occasional brief handouts—perhaps entire short works—maybe permitted in distance education, while reserves and other outside readings may not be proper materials to scan and display” (“Copyright and Distance” 39).

Moreover, copyright owners will probably want the most restrictive reading. Hutchinson makes clear what might be the copyright owners’ position: that the use of copyrighted works for distance education under the TEACH Act “is necessary to prevent students who choose to take online courses from receiving educational experiences inferior to their on-campus counterparts” (2220). Furthermore, if the TEACH Act provides for the use of digital texts as the ALA FAQ suggests, then copyright clearance should be unnecessary. Very recently, the Copyright Clearance Center worked in conjunction with Blackboard to include a new feature in course management software. Faculty members can seek copyright clearance for texts loaded to their site using two options built into Blackboard:

• “It connects a professor with a librarian or other staff member on the same campus who handles copyright issues and permissions.”
• “It opens a database at the Copyright Clearance Center, through which a professor can search for articles by name and purchase permissions without a librarian’s help. Once an article is found, the database will tell the professor what rights are available for the article, and how much using it would cost, based in part on the size of the professor’s class.” (Carlson “New Courseware Feature”)

If faculty members will be making the work available on the course Blackboard site for download, why would they need to seek copyright clearance unless the previously stated concerns are true, that materials meant to be read outside of the classroom, particularly in the case of non-distance education courses, do not fall under fair use or the TEACH Act? The mere existence of this online copyright clearance service for Blackboard will lead copyright owners to expect its use.