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as a service by: The National
Association For Music Education (MENC)
Music
Publishers' Association of The United States
Music
Teachers National Association
National Association of Schools of Music
National Music Publishers' Association No
copyright is claimed in this booklet. You are encouraged to reproduce it in order
to assure its widest possible circulation. The
MPA grants permission to photocopy this book of guidelines for distribution. Introduction Current
U.S. Copyright Law represents an attempt by Congress to balance the rights of
creators and copyright proprietors with the rights of copyright users. That is,
Congress wanted both to protect those that produce and own copyrighted materials
(composers and publishers) and to recognize the needs of those that use and enjoy
those materials (listeners, performers, and prominently, music teachers). The
compromise represented by the Law is the result of numerous congressional hearings
as well as studies conducted by the U.S. Copyright Office, in connection with
which a substantial amount of testimony was heard and numerous comments were received
from members of both groups. Of course, debate on the best way to manage the use
of creative materials was and is contentious, particularly around the specific
ways that educators can properly use copyrighted works without a formal license.
It is no surprise that copyright proprietors endeavor to protect the incentive
for creative effort, whereas educators wish to incorporate such works in their
instruction without over-restrictive regulations or costly permission fees. Basically,
the legislative compromise permits educators, subject to certain limitations and
exceptions, to use copyright protected works in the classroom setting while still
affording copyright proprietors significant protections against excessive or commercially-damaging
unauthorized use. Using the simple ideas put forth here, music educators will
be able to better focus on the core job of teaching and to protect themselves
and their schools from liability -- the unpleasant possibility of being sued. In
other words, the organizations that have cooperated in preparing this document
feel that to make the careful compromise written into the law work day-to-day,
two basic factors must be taken into consideration: - The
pedagogical need of music educators for reasonable access to copyrighted material
- The
practical need for music creators and their publishers to stay in business
Rights
of Copyright Owners The U.S.
Copyright Law is designed to encourage the development of the arts and
sciences
by protecting the creative work of the individuals in our society—composers,
authors, poets, dramatists, choreographers and others. The law deals first with
the exclusive rights belonging to the owner of a copyright (which may be the composer
or, if a deal has been cut, a publisher). These are things that only copyright
holders can do—unless they grant specific permission to others. These
rights, as stated in the law and relating to materials likely to be used by music
teachers, are: - To reproduce the
copyrighted work in copies or recordings
- To
prepare derivative works (e.g., arrangements) based upon the copyrighted work
- To
distribute copies or recordings of the copyrighted work to the public (mostly
by sale, but also by rental or other methods)
- To
perform the work publicly
- To perform
the copyrighted work publicly by means of a digital audio transmission
So
the law starts out by saying that the copyright holder has the exclusive right
to reproduce, arrange, and perform works. The law, however, proceeds to limit
these rights in certain specific instances, including library copying and educational
broadcasting. The most important group of limitations for music teachers is embodied
in the section of the law that outlines the concept of “educational fair
use.” (The actual sections of the law that deal with library and archival
copying and fair use are reproduced in their entirety in Appendix A of this document.
Use by Educators—Reproducing
Fair
use, which applies to all users, allows certain uses that would otherwise be illegal
infringements of the copyright owner’s rights. For example, limited quotations
of an excerpt from a work in a review or a news report are generally seen as constituting
“fair use.” Fair use may also be found when the use is for purposes
as criticism, comment, scholarship, research, or teaching. There is, however,
no simple black-and-white test. The Fair Use provision of the law sets out four
factors a court must consider in determining whether uses for these purposes may
be judged “fair”: - Purpose
and character of the use—(e.g., commercial or educational?)
- Nature
of the work—(epic poem, song, limerick, novel, opera?)
- Amount
and substantiality of the portion used—(how much is being copied and how
important is the copied material to the work?)
- Effect
on the potential market for or value of the work—(is the monetary value
of the work hurt by the unauthorized use?)
These
four factors are listed in the law itself; in 1967 and again in 1975, legislators
asked for help from the field (including the organizations that sponsor this document)
to develop guidelines to help teachers and others analyze these factors. Those
guidelines appear as Appendix B and Appendix C (on music and on books, respectively).
Based on this legislative compromise, the intent of the law seems to be that music
educators can do several things, without having secured permission of the copyright
owner: - Make a copy of a lost part
in an emergency, if it is replaced with a purchased part in due course
- Make
one copy per student of up to 10% of a musical work for class study as long as
that 10% does not constitute a performable unit
- Make
a single recording of a student performance for study and for the school’s
archive
- Make a single recording of
aural exercises or tests using copyrighted material
- Make
up to three copies to replace a copy that is damaged, deteriorating, lost, stolen
from a public library or archive (or if the existing format has become obsolete,
and if, after reasonable effort by the library/archive, an unused replacement
cannot be obtained at a fair price)
- Make
one copy of a short verbal or a graphic work for teacher’s use in preparation
for or during a class
The following,
however, are expressly prohibited: - Copying
to avoid purchase
- Copying music for
any kind of performance (but note the emergency exception above)
- Copying
without including a copyright notice
- Copying
to create anthologies or compilations
- Reproducing
materials designed to be consumable (such as workbooks, standardized tests, and
answer sheets)
- Charging students beyond
the actual cost involved in making copies as permitted above
Note
that a work may be out of print does not mean that permission is given to copy
and distribute that work. Music educators sometimes would like to procure a copy
or copies of an out-of-print copyrighted work for specific purposes. For that
reason, the music publishers’ trade associations have prepared a simple
form for use in the procurement of out-of-print works. The form is reproduced
as Appendix E. Use
by Educators—Recording
The
copyright owner has the exclusive right to reproduce copyrighted works in phonorecords
(meaning any form of audio-only recording) – limited in the ways outlined
previously. A common complication comes up when, in addition to recording music
as part of the learning process, music educators may occasionally wish to record
student performances and distribute copies of the recording within the community.
Here, the teacher needs a license to do so, but the law somewhat simplifies the
process for non-dramatic musical works. As long as the music has been distributed
to the U.S. public under the authority of the copyright owner (who essentially
gets the right to have the first try), any other person may obtain a compulsory
license. That is, music teachers can pay a royalty, set by law, to the copyright
owner. Through 12/31/03, that rate is set at 8.00 cents per selection or 1.55
cents per minute of playing time, whichever is greater.
In practice, a music teacher can get such a license by contacting The Harry Fox
Agency, Inc., through the web site at www.harryfox.com. There is a button on the
site for “limited licensing of 2,500 copies or less” that makes licenses
easy to obtain. The process is only for those who wish to make at least 500 copies,
however; teachers who want to pay for fewer copies will have to and contact the
publisher of the music directly. Three primary sources for this information are:
- National Music Publishers’ Association,
Inc. (NMPA) at www.nmpa.or
- Music Publishers’
Association of the United States (MPA) at www.mpa.org
- U.S.
Copyright Office at www.copyright.gov
The
first recording of a work and its distribution in recorded form, as well as any
recording of a dramatico-musical work such as a musical comedy, requires the consent
of the copyright owner. Use
by Educators—Preparing Derivative Works
Making arrangements of a piece of music is an exclusive
right of the copyright owner, but under the legal compromises surrounding the
law, some things are considered to be reasonable exceptions: - Music
teachers can edit or simplify purchased, printed copies, provided that the fundamental
character of the work is not distorted or the lyrics, if any, are not altered
or lyrics added if none exist.
- Music
teachers who get a compulsory license for recording can make a musical arrangement
of a work to the extent necessary for their ensemble (actually, “to conform
it to the style or manner of interpretation of the performance involved”).
This arrangement, however, cannot change the basic melody or fundamental character
of the work. This privilege is not meant to extend to “serious” compositions.
Anyone wishing to arrange a copyrighted work that falls outside the exceptions
noted above must obtain permission from the copyright owner. To simplify this
process, organizations that have participated in the preparation of this booklet
have also prepared a standard form for request and grant of permission and worked
out an expedited method for obtaining approval by e-mail. A copy of this form
appears in Appendix D.
Use
by Educators—Distribution
The
only exception to the exclusive right of the copyright owner to distribute copies
is that involved in the compulsory license relative to phonorecords as described
above. Note that even here a license is required and must be paid for. The law
just simplifies and details the times that permission must be granted and the
maximum rates that must apply. Use
by Educators—Performance
Complete information concerning licensing of public
performances of copyrighted non-dramatic musical works may be obtained from ASCAP,
BMI and SESAC; together, these three organizations work for composers and publishers
to handle the performance licenses for the vast majority of musical works. It
should be emphasized that a performance of a dramatico-musical work — an
opera, a ballet, a musical comedy, etc.— is customarily licensed by the
copyright owner of the performing right or his agent. Often, this is the publisher
of the music; sometimes, it is either Tams-Witmark Music Library or Rodgers and
Hammerstein Library.
And although performance
is one of the copyright owner’s exclusive rights, the special needs of music
educators, and others, are recognized in the fair-use limitations on these. The
relevant portions of the law are reproduced in Appendix A, and music educators
should take special notice of the very limited nature of these exemptions:
- The Face-to-Face Exemption:
To qualify for this exemption, the performance must be initiated by instructors
or pupils and must occur within the context of the “face-to-face teaching
activities” of a nonprofit educational institution, in a classroom or similar
place devoted to instruction (e.g., a library, studio or workshop). It should
be noted that there is no specific restriction, in this case, on the type or amount
of a copyrighted work that may be performed. This exemption is limited, and does
not apply to:
- Performances
by actors, singers, or instrumentalists brought in from outside the school to
put on a program
- Performances, whatever
their cultural value or intellectual appeal, that are given for the recreation
or entertainment of any part of their audience
- Performances
in profit-making institutions such as for-profit dance or music studios
- Performances
in an auditorium or stadium during a school assembly, graduation ceremony, class
play, or sporting event, where the audience is not confined to the members of
a particular class (Only performances “in a classroom or similar place devoted
to instruction” fit this provision; performances at shopping malls and the
like are certainly not covered)
- The
Distance Education Exemption: The law does permit performance or display
of a musical work by a transmission (distance education) in an amount comparable
to that which is typically displayed in the course of a live classroom session.
Because the law places the onus of developing and implementing a copyright policy
on the transmitting body or institute (the school system), this really only applies
to teachers who work in schools that have developed the technical and legal structures
to deal with this issue. For example, storage and dissemination of the work must
be tightly controlled, as must the use of audio-visual oar dramatico-musical works.
Also, this exemption does not apply to works developed directly for distance learning
or for recordings that were made illegally. A checklist to help institutions comply
with the distance education exemption appears in Appendix F. At any rate, to come
within the distance education exemption, the performance or display must be:
- Made by, at the direction of, or under the actual
supervision of an instructor
- An integral
part of a class session offered as a regular part of the normal teaching of a
public school or an accredited nonprofit educational institution
- Essential
to the teaching content of the transmission; and made solely for and, to the extent
technologically feasible limited to reception by, students officially enrolled
in the course for which the transmission is made
- Music
for Worship Exemption: Performance of non-dramatic literary or musical works
or of dramatico-musical works of a religious nature, in the course of services
at places of worship or at a religious assembly, is permitted.
- School
Concert Exemption: School ensembles, students, and teachers, can put on a
performance of a non-dramatic literary or musical work at a school concert as
long as no money changes hands. That is, nobody can gain any direct or indirect
commercial advantage; no fee or compensation can be paid to the performers, promoters
or organizers; and no admission charge can be levied. (There is even an exception
to this: there can be an admission charge, but all of the proceeds must be used
only for educational or charitable purposes.) The performance may not take place
if the copyright owner objects in writing seven days before the performance.
Use
by Educators—Display
Any
music educator who has purchased or otherwise lawfully acquired a copy of a copyrighted
work may display it to those present at the place where the copy is located. A
teacher, as an agent of the school, can display a copy of music that he or she
owns, or a school-owned copy. The legislative compromise surrounding this part
of the law indicates that displaying the image of such a copy by an opaque projector
would not be an infringement, whereas making an unauthorized copy—transparency,
slide or filmstrip—to project would not be permissible. Duration
of Copyright
The duration of
copyright has changed several times as Congress refined compromises over the law.
Currently, a teacher can generally presume that a work copyrighted less than 95
years ago is still covered by the law. Here are how the details work:
- Works created after January 1, 1978 will be protected
for the life of the composer (author) plus 70 years.
- Copyrights
in effect on that date, if renewed, will continue for 95 years from the date copyright
was originally secured. Renewal became automatic for all works that first obtained
US copyright in 1964 or later, so those works in their initial 28-year period
of copyright on January 1, 1978 could have been or now can be renewed for an additional
67 years, while the copyright of works in their renewal term on that date were
automatically extended for an additional 19 years, and, if still in copyright
on October 28, 1998, again for an additional 20 years, for a total of 39.
Penalties
for Infringement
The remedies provided by the law to a copyright
owner mean that a music
educator found making illegal copies, or otherwise
infringing, could face some very unpleasant consequences: - Statutory
damages of from $750 to $30,000 in the simplest cases. If the court finds that
the infringer “was not aware and had no reason to believe that his or her
acts constituted an infringement” the minimum damages may be reduced. Also,
the penalty can be remitted for teachers in public or nonprofit schools who had
reasonable grounds for believing that the “fair use” portions of the
law applied. But be aware that ignorance of the law is no excuse—teachers
who wish to use this provision need to understand “fair use” and make
the most of the privileges it grants, but they must also abide by its very definite
limitations.
- If a court decides that
the act of infringement was willful, the damages can go up to $150,000 per copyright
infringed.
- If a court finds willful
infringement for commercial advantage and private financial gain is proved, the
infringer can face criminal fines of up to $250,000 or five years’ imprisonment,
or both.
Appendix
A: Essential Sections of the Law The
Fair Use; Library Reproduction; and Exemption of Certain Performances and Displays
Sections of the Law §107.
Limitations on Exclusive Rights: Fair Use Notwithstanding
the provisions of sections 106 and 106A, the fair use of a copyrighted work, including
such use by reproduction in copies or phonorecords or by any other means specified
by that section, for purposes such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or research, is not
an infringement of copyright. In determining whether the use made of a work in
any particular case is a fair use the factors to be considered shall include:
- The purpose and character of the use, including
whether such use is of a commercial nature or is for nonprofit educational purposes;
- The
nature of the copyrighted work;
- The
amount and substantially of the portion used in relation to the copyrighted work
as a whole; and
- The effect of the
use upon the potential market for or value of the copyrighted work.
§108.
Limitations on Exclusive Rights: Reproduction by Libraries and Archives (a)
Except as otherwise provided in this title and notwithstanding the provisions
of section 106, it is not an infringement of copyright for a library or archives,
or any of its employees acting within the scope of their employment, to reproduce
no more than one copy or phonorecord of a work, except as provided in subsections
(b) and (c), or to distribute such copy or phonorecord under the conditions specified
by this section, if– (1)
The reproduction or distribution is made without any purpose of direct or indirect
commercial advantage; (2) The collections
of the library or archives are (i) open to the public, or (ii) available not only
to researchers affiliated with the library or archives or with the institution
of which it is a part, but also to other persons doing research in a specialized
field; and (3) The reproduction or distribution
of the work includes a notice of copyright that appears on the copy or phonorecord
that is reproduced under the provisions of this section, or includes a legend
stating that the work may be protected by copyright if no such notice can be found
on the copy or phonorecord that is reproduced under the provisions of this section. (b)
The rights of reproduction and distribution under this section apply to three
copies or phonorecords of an unpublished work duplicated solely for purposes of
preservation and security or for deposit for research use in another library or
archives of the type described by clause (2) of subsection (a), if–
(1) The copy or phonorecord reproduced is currently
in the collections of the library or archives; and (2)
Any such copy or phonorecord that is reproduced in digital format is not otherwise
distributed in that format and is not made available to the public in that format
outside the premises of the library or archives. (c)
The right of reproduction under this section applies to three copies or phonorecords
of a published work duplicated solely for the purpose of replacement of a copy
or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing
format in which the work is stored has become obsolete, if–
(1) The library or archives has, after a reasonable
effort, determined that an unused replacement cannot be obtained at a fair price;
and
(2) Any such copy or phonorecord that is reproduced in digital format
is not made available to the public in that format outside the premises of the
library or archives in lawful possession of such copy. For
purposes of this subsection, a format shall be considered obsolete if the machine
or device necessary to render perceptible a work stored in that format is no longer
manufactured or is no longer reasonably available in the commercial marketplace. (d)
The rights of reproduction under this section apply to a copy, made from the collection
of a library or archives where the user makes his or her request or from that
of another library or archives, of no more than one article or other contribution
to a copyrighted collection or periodical issue, or to a copy or phonorecord of
a small part of any other copyrighted work, if– (1)
The copy or phonorecord becomes the property of the user, and the library or archives
has had no notice that the copy or phonorecord would be used for any purpose other
than private study, scholarship, or research; and (2)
The library or archives displays prominently, at the place where orders are accepted,
and includes on its order form, a warning of copyright in accordance with requirements
that the Register of Copyrights shall prescribe by regulation. (e)
The rights of reproduction and distribution under this section apply to the entire
work, or to a substantial part of it, made from the collection of a library or
archives where the user makes his or her request or from that of another library
or archives, if the library or archives has first determined, on the basis of
a reasonable investigation, that a copy or phonorecord of the copyrighted work
cannot be obtained at a fair price, if– (1)
The copy or phonorecord becomes the property of the user, and the library or archives
has had no notice that the copy or phonorecord would be used for any purpose other
than private study, scholarship, or research; and (2)
The library or archives displays prominently, at the place where orders are accepted,
and includes on its order form, a warning of copyright in accordance with requirements
that the Register of Copyrights shall prescribe by regulation. (f)
Nothing in this section– (1)
Shall be construed to impose liability for copyright infringement upon a library
or archives or its employees for the unsupervised use of reproducing equipment
located on its premises: Provided, That such equipment displays a notice that
the making of a copy may be subject to the copyright law; (2)
Excuses a person who uses such reproducing equipment or who requests a copy or
phonorecord under subsection (d) from liability for copyright infringement for
any such act, or for any later use of such copy or phonorecord, if it exceeds
fair use as provided by section 107: (3)
Shall be construed to limit the reproduction and distribution by lending of a
limited number of copies and excerpts by a library or archives of an audiovisual
news program, subject to clauses (1), (2), and (3) of subsection (a); or (4)
In any way affects the right of fair use as provided by section 107, or any contractual
obligations assumed at any time by the library or archives when it obtained a
copy or phonorecord of a work in its collections. (g)
The rights of reproduction and distribution under this section extend to the isolated
and unrelated reproduction or distribution of a single copy or phonorecord of
the same material on separate occasions, but do not extend to cases where the
library or archives, or its employee– (1)
Is aware or has substantial reason to believe that it is engaging in the related
or concerted reproduction or distribution of multiple copies or phonorecords of
the same material, whether made on one occasion or over a period of time, and
whether intended for aggregate use by one or more individuals or for separate
use by the individual members of a group: or (2)
Engages in the systematic reproduction or distribution of single or multiple copies
or phonorecords of material described in subsection (d): Provided, That nothing
in this clause prevents a library or archives from participating in interlibrary
arrangements that do not have, as their purpose or effect, that the library or
archives receiving such copies or phonorecords for distribution does so in such
aggregate quantities as to substitute for a subscription to or purchase of such
work. (h)
(1) For purposes of this section, during the last
20 years of any term of copyright of a published work, a library or archives,
including a nonprofit educational institution that functions as such, may reproduce,
distribute, display, or perform in facsimile or digital form a copy or phonorecord
of such work, or portions thereof, for purposes of preservation, scholarship,
or research, if such library or archives has first determined, on the basis of
a reasonable investigation, that none of the conditions set forth in subparagraphs
(A), (B), and (C) of paragraph (2) apply. (2)
No reproduction, distribution, display, or performance is authorized under this
subsection if– (A)
the work is subject to normal commercial exploitation; (B)
a copy or phonorecord of the work can be obtained at a reasonable price; or (C)
the copyright owner or its agent provides notice pursuant to regulations promulgated
by the Register of Copyrights that either of the conditions set forth in subparagraphs
(A) and (B) applies. (3)
The exemption provided in this subsection does not apply to any subsequent uses
by users other than such library or archives. (i)
the rights of reproduction and distribution under this section do not apply to
a musical work, a pictorial, graphic or sculptural work, or a motion picture or
other audiovisual work other than an audiovisual work dealing with news, except
that no such limitation shall apply with respect to rights granted by subsections
(b) and (c), or with respect to pictorial or graphic works published as illustrations,
diagrams, or similar adjuncts to works of which copies are reproduced or distributed
in accordance with subsections (d) and (e). §
110. Limitations on exclusive rights: Exemption of certain performances and displays Notwithstanding
the provisions of section 106, the following are not infringements of copyright:
(1) performance or display of a work by instructors
or pupils in the course of face-to-face teaching activities of a nonprofit educational
institution, in a classroom or similar place devoted to instruction, unless, in
the case of a motion picture or other audiovisual work, the performance, or the
display of individual images, is given by means of a copy that was not lawfully
made under this title, and that the person responsible for the performance knew
or had reason to believe was not lawfully made; (2)
performance of a non-dramatic literary or musical work or display of a work, by
or in the course of a transmission, if- (A)
the performance or display is a regular part of the systematic instructional activities
of a governmental body or a nonprofit educational institution; and (B)
the performance or display is directly related and of material assistance to the
teaching content of the transmission; and (C)
the transmission is made primarily for- (i)
reception in classrooms or similar places normally devoted to instruction, or (ii)
reception by persons to whom the transmission is directed because their disabilities
or other special circumstances prevent their attendance in classrooms or similar
places normally devoted to instruction, or (iii)
reception by officers or employees of governmental bodies as a part of their official
duties or employment; (3)
performance of a nondramatic literary or musical work or of a dramatico-musical
work of a religious nature, or display of a work, in the course of services at
a place of worship or other religious assembly; (4)
performance of a nondramatic literary or musical work otherwise than in a transmission
to the public, without any purpose of direct or indirect commercial advantage
and without payment of any fee or other compensation for the performance to any
of its performers, promoters, or organizers, if—
(A) there is no direct or indirect admission charge;
or (B) the proceeds, after deducting
the reasonable costs of producing the performance, are used exclusively for educational,
religious, or charitable purposes and not for private financial gain, except where
the copyright owner has served notice of objection to the performance under the
following conditions: (i)
the notice shall be in writing and signed by the copyright owner or such owner's
duly authorized agent; and (ii) the
notice shall be served on the person responsible for the performance at least
seven days before the date of the performance, and shall state the reasons for
the objection; and (iii) the notice
shall comply, in form, content, and manner of service, with requirements that
the Register of Copyrights shall prescribe by regulation; Appendix
B: Guidelines with Respect to Copyrighted Music Material The
purpose of the following guidelines is to state the minimum and not the maximum
standards of educational fair use under section 107 of the 1976 Copyright Act.
The parties agree that the conditions determining the extent of permissible copying
for educational purposes may change in the future; that certain types of copying
permitted under these guidelines may not be permissible in the future; and conversely
that in the future other types of copying not permitted under these guidelines
may be permissible under revised guidelines. Moreover, the following statement
of guidelines is not intended to limit the types of copying permitted under the
standards of fair use under judicial decision and which are stated in Section
107 of the 1976 Copyright Act. There may be instances in which copying that does
not fall within the guidelines stated below may nonetheless be permitted under
the criteria of fair use. - Permissible
uses:
- Emergency copying to replace
purchased copies which for any reason are not available for an imminent performance
provided purchased replacement copies shall be substituted in due course.
- For
academic purposes other than performance, multiple copies of excerpts of works
may be made, provided that the excerpts do not comprise a part of the whole which
would constitute a performable unit such as a section, movement or aria but in
no case more than 10% of the whole work. The number of copies shall not exceed
one copy per pupil.
- Printed copies
which have been purchased may be edited OR simplified provided that the fundamental
character of the work is not distorted or the lyrics, if any, altered or lyrics
added if none exist.
- A single copy
of recordings of performances by students may be made for evaluation or rehearsal
purposes and may be retained by the educational institution or individual teacher.
- A
single copy of a sound recording (such as a tape, disc or cassette) of copyrighted
music may be made from sound recordings owned by an educational institution or
an individual teacher for the purpose of constructing aural exercises or examinations
and may be retained by the educational institution or individual teacher. (This
pertains only to the copyrights of the music itself and not to any copyright that
may exist in the sound recording.)
- Prohibitions:
- Copying to create or replace or substitute
for anthologies, compilations or collective works.
- Copying
of or from works intended to be “consumable” in the course of study
or teaching such as workbooks, exercises, standard tests and answer sheets and
like material.
- Copying for the purpose
of performance except as in A-1 on previous page.
- Copying
for the purpose of substituting for the purchase of music except as in A-1 and
2 above.
- Copying without inclusion
of the copyright notice which appears on the printed copy.
Appendix
C: Guidelines with Respect to Copyrighted Books and Periodicals The
purpose of the following guidelines is to state the minimum and not the maximum
standards of educational fair use under Section 107 of the 1976 Copyright Act.
The parties agree that the conditions determining the extent of permissible copying
for educational purposes may change in the future; that certain types of copying
permitted under these guidelines may not be permissible in the future; and conversely
that in the future other types of copying not permitted under these guidelines
may be permissible under revised guidelines. Moreover, the following statement
of guidelines is not intended to limit the types of copying permitted under the
standards of fair use under judicial decision and which are stated in Section
107 of [the 1976 Copyright Act]. There may be instances in which copying which
does not fall within the guidelines stated below may nonetheless be permitted
under the criteria of fair use. Guidelines
- Single Copying For Teachers
A single
copy may be made of any of the following by or for a teacher at his or her individual
request for his or her scholarly research or use in teaching or preparation to
teach a class: - A chapter from a book;
- An
article from a periodical or newspaper;
- A
short story, short essay or short poem, whether or not from a collective work;
- A
chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or
newspaper.
- Multiple
Copies For Classroom Use
Multiple copies (not to exceed in any event
more than one copy per pupil in a course) may be made by or for the teacher giving
the course for classroom use or discussion; provided that: - The
copying meets the tests of brevity and spontaneity as defined below; and,
- Meets
the cumulative effect test as defined below; and,
- Each
copy includes a notice of copyright.
Definitions Brevity
- Poetry: a. A complete poem if less than 250 words
and if printed on not more than two pages, or (b) from a longer poem, an excerpt
of not more than 250 words.
- Prose:
a. Either a complete article, story or essay of less than 2,500 words, or (b)
an excerpt from any prose work of not more than 1,000 words or 10% of the work,
whichever is less, but in any event a minimum of 500 words. (Each of the numerical
limits stated in “i” and “ii” above may be expanded to
permit the completion of an unfinished line of a poem or of an unfinished prose
paragraph.)
- Illustration: One chart,
graph, diagram, drawing, cartoon or picture per book or per periodical issue.
- “Special”
works: Certain works in poetry, prose or in “poetic prose” which often
combine language with illustrations and which are intended sometimes for children
and at other times for a more general audience fall short of 2,500 words in their
entirety. Paragraph “ii” above notwithstanding such “special
works” may not be reproduced in their entirety; however, an excerpt comprising
not more than two of the published pages of such special work and containing not
more than 10% of the words found in the text thereof, may be reproduced.
Spontaneity
- The copying is at the instance and inspiration
of the individual teacher, and
- The
inspiration and decision to use the work and the moment of its use for maximum
teaching effectiveness are so close in time that it would be unreasonable to expect
a timely reply to a request for permission.
Cumulative
Effect - The copying of
the material is for only one course in the school in which the copies are made.
- Not
more than one short poem, article, story, essay or two excerpts may be copied
from the same author, nor more than three from the same collective work or periodical
volume during one class term.
- There
shall not be more than nine instances of such multiple copying for one course
during one class term. (The limitations stated in “ii” and “iii”
above shall not apply to current news periodicals and newspapers and current news
sections of other periodicals.)
- Prohibitions
as to A and B above
Notwithstanding
any of the above, the following shall be prohibited: Copying shall not be used
to create or to replace or substitute for anthologies, compilations or collective
works. Such replacement or substitution may occur whether copies of various works
or excerpts therefrom are accumulated or produced and used separately. Appendix
D – Checklist to Help Institutions/Governmental Bodies Comply with the Distance
Education Exemption: - The
transmission of the copyright protected material is being made at the direction
of an instructor.
- The transmitting
entity is either an accredited nonprofit educational institution or a governmental
body.
- The copyright protected work
that is being performed or displayed is directly related to the subject of the
class, and the class is or will be regularly offered by the transmitting entity.
- The
copyright protected work is only made available to students enrolled in the course.
- In
the case of any copyright protected work (other than non-dramatic literary or
musical works), only reasonable and limited portions or an amount comparable to
that which is typically displayed in the course of a live classroom session is
performed or displayed.
- The transmitting
entity has developed and implemented a copyright policy designed to promote compliance
with U.S. Copyright Law. This policy and related works have been made available
to faculty, students and relevant staff members.
- The
transmitting entity has applied technological measures to prevent: (i) the retention
of the work by a student for longer than the class session (i.e., access is disabled
at the conclusion of a single class period), and (ii) the further dissemination
of the work.
- The transmitting entity
has not interfered with any technological measure used by a copyright owner to
prevent unauthorized retention or dissemination of a copyright protected work.
- The
copy of the copyright protected work being displayed or performed was lawfully
obtained.
- The work being performed
or displayed was not produced or marketed primarily for distance education.
Appendix
E – Contacts and Useful Information Performing
Rights Organizations
Dramatic Music
Recording
Rights
Addresses of Publishers
The
Copyright Office Performing
Rights Organizations
The following are addresses of the three performing
rights organizations: American
Society of Composers, Authors & Publishers (ASCAP)
One Lincoln Plaza
New York, NY 10023
(212) 621-6000
www.ascap.com Broadcast
Music, Inc. (BMI)
320 West 57th Street
New York, NY 10019
(212) 586-2000
www.bmi.com SESAC, Inc.
152 West
57th St
57th Floor
New York, NY 10019
(212) 586-3450
www.sesac.com Dramatic
Music
The above-named performing rights organizations do not license
dramatico-musical works. These rights may be licensed by the publisher, or, in
some instances, by the following licensing agencies: Tams-Witmark
Music Library, Inc.
560 Lexington Avenue
New York, NY 10022
(212)
688-2525 Rodgers & Hammerstein Library
1633 Broadway, Suite 3801
New York, NY 10019
(212) 541-6600
www.rnh.com Music
Theatre International
421 West 54th Street
New York, NY 10019
(212)
541-4684
www.mtishows.com Samuel
French, Inc.
45 West 25th Street
New York, NY 10010
(212) 206-8990
www.samuelfrench.com Recording
Rights
The following is the address of the agency that handles recording
rights for most music publishers: The
Harry Fox Agency, Inc.
711 Third Ave., 8th Floor
New York, NY 10017
(212) 370-5330
www.harryfox.com Addresses
of Publishers
Sometimes, an educator who wishes to secure a license
or permission to perform a dramatico-musical work, or to make an arrangement,
or for some other copyright inquiry, may have difficulty in locating the copyright
proprietor. The name, of course, may appear with the copyright notice on the title
page or elsewhere in the publication. Sometimes, however, the publishing company
has been absorbed by another; changed its name and address, or for some other
reason is difficult to locate. The National Music Publishers’ Association
and/or the Music Publishers’ Association of the United States will undertake
to supply that information. While this may not always be possible, the information
available to those organizations makes them the best source to assist all those
who have difficulty in locating a music publisher. National
Music Publishers’ Association, Inc. (NMPA)
475 Park Avenue South - 29th
Floor
New York, New York 10016-6901
(646) 742-1651711
www.nmpa.org Music
Publishers’ Association of the United States (MPA)
PMB 246
1562
First Avenue
New York, NY 10028
(212) 327-4044
www.mpa.org
The
Copyright Office
The U.S. Copyright Office is a primary source of
information about copyrights generally, and the process of protecting musical
works. U.S. Copyright Office
Library of Congress
101 Independence Avenue S.E.
Washington, D.C., 20559-6000
www.loc.gov/copyright |