Music educators and students need to understand copyright law because they are engaged in a process that brings them into contact with its sometimes arcane principles as they study the works of others and collaborate to create new works. This paper will present basic principles: copyright’s purpose and how it achieves it; what it protects, what are an owner’s exclusive rights and what are the rights of users that limit the owner’s monopoly, including fair use and first sale. Then we will explore several typical scenarios involving the use of music in the digital classroom today to see how these principles are applied in practice.

The US Constitution states the purpose of copyright in the clause that authorizes Congress to create the Copyright Act: to improve our society through the advancement of knowledge. It probably makes sense to most of us that providing an incentive to creators will motivate them to create. The more things created, the better off our society will be. But creation is just the first step. Those creations have to get "out there" if society is to have their benefit. The knowledge has to be disseminated. People have to get access to it, both while it is fresh, for the ideas it contains, and later when the exclusive rights of the owner have "expired." Once the owner's term of protection has done its job, the particular expression the author used becomes a part of our shared resource: the public domain. The public domain is not a big black hole into which works "fall" never to be seen or heard again. It is the repository for all the creations that our copyright law has supported, the expression that we are all free to use in any way we wish. The richness of this resource supports the development of our cultural wisdom, even our democratic way of life.

This is a pretty noble purpose. How does copyright law achieve it?

We answer that question by exploring copyright basics. Each part of the law reveals an aspect of how copyright accomplishes its purpose.

Copyright only protects unique ways of expressing ideas once the expressions are fixed in a tangible medium. It only requires a minimum amount of creativity. It does not protect facts included in a work or the ideas or the processes or systems that may be described in a work. Anyone can use facts and ideas in a work at any time, if they can get access to the work.

This is our first example of how copyright law achieves its purpose. It’s easy to see that excluding facts and ideas from protection promotes the growth of knowledge. Thus, the limits within the definition of copyrightable work are an important part of the way copyright fulfills its constitutional mandate.

Today, protection begins at the moment that a work is fixed in a tangible medium. For example, the work that you are viewing was protected the moment I hit the "save" key for the first time. This protection is automatic. One need do nothing to secure it -- no registration; no notice requirement.

It wasn't always like this. Until 1978, the term of protection began when a work was published with the proper copyright notice. Works published between 1923 and 1978 are protected for 95 years. Works published after 1978 have a different kind of term: it is the life of the author plus 70 years. Finally, unpublished works created before 1978 are protected for either the life of the author plus 70 years or until December 31, 2002, whichever is longer.

Do these terms strike you as really long? They used to be much shorter: 28 years from the date of publication plus an optional 28 year renewal term. When copyright terms were shorter and it required some deliberate act to claim copyright protection (publication with notice), copyright’s balance favored public access and use more than it does today. The changes in this area are strong evidence of a shift in the balance.

An author's exclusive rights include the right to make copies, create derivative works, distribute, display and perform works publicly, and authorize others to exercise the author's rights. Certain artists also have rights of integrity and attribution, our version of "moral rights."

Clearly, this set of exclusive rights is an important aspect of the complex way copyright achieves its purpose. So far, for the most part, control over copies has been necessary for the exercise of these rights. In the analog world, controlling copies was not that hard. Today, however, control in the digital world is a major problem. In fact, inability to control copies is viewed as a major stumbling block to the creation of online content by many in the entertainment and publishing industries.

Where one must control copies to obtain the benefit of the exclusive rights, technologies like Napster represent a world where the owner’s incentive has been stripped out of the Copyright Act. Of course, the music industry’s business model is predicated on controlling and counting copies, but that is not the only way to provide an incentive to authors. Regardless of who wins the lawsuit, the existence of Napster technology and other technologies like it suggests that it’s time to move on. If we don’t find other ways to implement the incentive, solutions that try to tighten down control can have the effect of stripping out all the counterbalancing provisions of the Copyright Act that provide public benefits. Let’s turn to those provisions now.

The rights of copyright owners are exclusive, meaning that only they may exercise them, but they are not unlimited. There are many provisions of the Copyright Act that place important limits on the owner's rights. The law does this because it has to to achieve its purpose. Here we can clearly see that purpose matters. If the purpose of copyright law was to maximize the profits of copyright owners, there would be no need for limits. We could let copyright owners control every single use of their works. But the purpose of copyright law is to maximize knowledge, so we need some limits.

Those of special importance to the University community include Section 107, permitting fair uses of works without the owner's permission; Section 108, permitting libraries to archive works, to make copies for patrons and to participate in interlibrary loan operations, among other things; and Section 109, permitting all of us to dispose of our copies of a work without regard to the wishes or the pocketbook of the copyright owner. This provision, called the first sale doctrine, is the backbone of our public library system and one of the principle ways that copyright law achieves its purpose to facilitate public access to the ideas contained in copyrighted works. Section 110 permits certain educational performances and displays in face-to-face teaching and in distance learning, among other things. Section 121 permits entities like Texas’ Commission for the Blind and Visually Impaired to make copies without permission where a copyright owner has not chosen to make special versions for the disabled available itself.

Although we'll only explore the fair use and performance limitations today, it is important to remember that all of the limitations–individually, and taken together–are critical to the achievement of copyright's purpose, to improve our society by increasing knowledge. They are just as much a part of how copyright achieves its purpose as the incentive to authors.

Just as in the Copyright Act in general, fair use in particular embodies a balance of interests: it balances the interests of copyright owners to control the use of their works so that they can take full advantage of their incentive, their period of exclusivity, and the interests of the public for access to the works and the ideas in them. Fair use is often described in this regard as embodying First Amendment concerns. One can imagine that copyrights could easily be used to thwart speaking and listening, were the exclusive rights intolerably rigid. Fair use gives us some "breathing room." One of the best examples of this is reliance on fair use to quote from a work in order to take issue with it or criticize or otherwise comment upon it. No copyright owner can legitimately refuse to permit such use, because it is a fair use and does not require the owner's permission.

Fair use also addresses the failure of our markets at times to facilitate important uses of works that just do not make economic sense. For example, in many cases, the cost to locate, contact, and negotiate with a copyright owner is many, many times more than the price that the owner would ultimately charge for the right he owns. When it does not make sense for the seller and buyer of rights to do business, fair use can "step in" and bridge the gap by making it legal for the buyer to make the use of the owner's work without having to carry out the uneconomic transaction. A good example of this kind of use is including a few images or short audio or audiovisual clips in an educational multimedia work for classroom use, where getting permission would be practically impossible.

Both of these functions strongly support the achievement of copyright’s purpose by letting people use works in ways that further copyright’s goals without significantly affecting the copyright owner’s incentive because, as we’ll see, the fair use statute builds in to the fair use test ample consideration of the copyright owner’s interests.

Fair use is set out in Section 107 of the Copyright Act. It has two parts. The first part describes uses that are typical fair uses: criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, and research. This list is not exhaustive, however, and even a use that is listed may not be a fair use. That's because each proposed fair use must satisfy the second part of the statute: the four factors the statute lays out for consideration in each case. The four factors are:

1. The purpose and character of the use;
2. The nature of the copyrighted work to be used;
3. The amount and substantiality of the part used;
4. The effect of the use on the market for or value of the work.

The statute employs a "weighing and balancing" technique that introduces many opportunities for judgment. It is quite possible for two people to consider the same use and come to different conclusions about whether it is fair. I have summarized my knowledge about how the fair use test works in the article, "Fair Use of Copyrighted Works," and urge you to read it for more information about how this test works.

The important thing to see at this point is that fair use is not a blanket exemption for educators. It’s an exemption that permits certain uses of certain works for certain purposes, taking into consideration the interests of the copyright owner.

The ambiguity of the fair use test has brought copyright owners and users together to try to achieve some consensus on what would actually be fair uses in various educational contexts. The agreements reached are referred to as guideline and most were created at the urging of government officials, but none has the force of law. In every case, they do not define the limits of fair use, but rather the minimum of fair use, a safe harbor, so to speak. The guidelines are much more specific than the statute, giving actual amounts of works that can be used in many cases. The trouble is that the amounts are pretty small. That and other limits imposed on the uses can make the guidelines less helpful for higher education. This doesn't mean that they should not be used as a starting point, because if a use fits within them, the user need go no further to determine that the use is fair. If a use exceeds them, the user still has recourse to the statute. Thus, using both the guidelines and the statute gives educators the maximum flexibility.

If a use is not a fair use under either the guidelines or the statute, an educator still has choices: he can change it so it is fair, if possible, use a public domain alternative, or get permission.

The article to which I referred earlier, "Fair Use of Copyrighted Works," contains links to all of the guidelines that exist as well as a set of guidelines developed at the University of Texas System based on the negotiated guidelines and information about how to get permission.

Copyright law provides educators with a special set of rights to display and perform others’ works in the classroom. These rights apply to any work, regardless of the medium. When the classroom is remote, however, the law’s generous terms shrink dramatically — some would say to the vanishing point! The severe limitations on what can be performed in distance education have received lots of attention. In 1998, Congress directed the Copyright Office to prepare a report recommending what should be done to facilitate the use of digital technologies in distance education.

The Copyright Office prepared its report and recommended significant changes, but Congress has not acted. Reportedly, copyright owners, particularly the publishing and entertainment industries, are appalled by these recommendations and are likely to strongly oppose any implementation of them.

Section 110’s role in the achievement of copyright’s purpose has always been to permit educators to share works with their students, to play and show others’ works in class, without permission. In its exclusion of meaningful rights for digital distance educators, Section 110 increasingly fails to carry its weight, so to speak. It has been effectively "written out" of the statute just by being allowed to become outdated and obsolete.

For now at least, we must rely more heavily on fair use to fill the gap between what is authorized for face-to-face teaching and what is authorized for distance education.

One reason fair use figures so heavily in performance rights for distance educators, or any educators who want to enhance their classroom teaching with online materials, is that putting anything online requires making a copy of it. Performance rights only cover the actual performance, not making copies. The best source of authority for making copies is almost always going to be fair use. Because the second and third factors will frequently weigh against fair use in an analysis involving the use of music, the fourth factor becomes very critical: if the copyright owner makes it easy to get what you want from him, or makes it easy to get permission to do what you want to do, your use will not be fair. In other words, where the work you want is available digitally, or where it’s easy to get permission to digitize a work and use it as you plan to use it, you should not rely on fair use.

At this time, the music industry is not very friendly to nonprofit educational uses. There is no music correlate to the CCC; no easy way to get permission to digitize old vinyl recordings, for example, or digitize recordings to be used in multimedia works. This "failure of the market" broadens the scope of fair use. The flip side of this is, however, that as the music industry begins to respond to market demands, the scope of fair use will shrink and we’ll need to get permission when it becomes possible to do so effectively and efficiently.

Our performance licenses are beginning to address online performances, but by their nature, performance licenses will never address making copies. Making copies is not the same thing as a performance of a work.

A faculty member teaches a course on the history of American Rock and Roll. The course is very popular. She decides to enhance the course for its large audiences by creating a digital archive of the music selections that she includes in the course, accessible by the students from anywhere. Since many of her recordings are old analog records, she will need to use sophisticated equipment to create digital sound files and edit out the crackles and pops of the vinyl recordings. These files will be stored on a server in the library and only those students registered for the class will be permitted to access them and only for the semester for which they are registered.

Some of the songs she teaches are newer, however, and are available digitally as CDs. She would like to convert these to files that can be stored on the same server as the digitized analog recordings.

1. What are the possible sources of authority for creating the copies that the professor wishes to make? (110; licenses; fair use)
2. What is the critical aspect of the fourth factor of the fair use analysis for making the digital recordings of analog records? (lack of market for digital copies of old analog recordings; lack of market for permission to digitize any music for digital reserves)
3. How does the fourth factor affect the fair use analysis for making digital files from digital recordings? (lack of a market for permission to convert CDs to digital files that can be stored on a server)
4. What else might she do to enhance her fair use argument? (monitor the permission market for creating digital files from a CD; stream the recordings rather than permit downloads; don’t bypass any technological protection to make the recordings)

A faculty member develops a multimedia work on the history of American photography. She includes samples both of famous, frequently published photographs, most of which came from her slide archive, and of previously unpublished photographs she has collected that she considers to be good examples of various techniques. The work also includes her commentary, portions of relevant textbooks and articles by other scholars, and recorded music from appropriate eras as background. She originally developed the work for her class, but her department chair, interested in new sources of revenue, wants to explore its market potential.

1. May she include music as "background" without permission?
2. What are her possible sources of authority to use music in this way? (Section 110; music licenses; fair use)
3. Which aspects of this use weigh in favor of fair use? (nonprofit educational use; probably using less than whole recordings; inability to get permission to make a novel use of music like this)
4. Which aspects of this use weigh against fair use? (the fact that music is a creative work)
5. What can the professor do to bolster a fair use claim? (limit access; monitor licensing opportunities to be sure that it doesn’t become easy to obtain permission to do this kind of thing)
6. If she and her dean are successful in finding a commercial market, will the publisher likely accept her reliance on fair use? (no)

Copyright law is an agreement among all of us, copyright owners and users, to allocate rights and responsibilities for a particular purpose: the advancement of knowledge. We provide an economic incentive to authors to get them to create; we put limits on their power to control their works in order to provide the public benefit the Constitution mandates. Neither the incentive nor the limits on an owner's ability to control and exploit his work are a problem to be gotten around: they are the fundamental way the law achieves its purpose.

Our challenge against this backdrop is to learn about our rights and responsibilities and to understand the purpose of this law and the ultimate good it promotes. By using others’ works responsibly, we teach respect for the creative endeavors we are in fact encouraging in our students. But just as importantly, we need to teach respect for the rights of users of others’ works: fair use and educational performance rights are there for a reason: they further the goals of copyright without undermining the incentive to authors, when they are exercised responsibly.