Issued jointly by:
Music Educators National Conference
Music Publishers' Association of the United States
Music Teachers National Association
National Association of Schools of Music
National Music Publishers' Association
On the nineteenth day of October 1976, President Gerald R. Ford signed the nation's first comprehensive revision of our copyright law since 1909. This law, though it provided for a transitional year in 1977, became fully effective on January 1, 1978. The organizations listed on the cover page have sponsored the preparation of this booklet to inform music educators of the provisions in the 1976 U.S. Copyright Act that have particular application to teachers' uses of copyrighted materials.
The 1976 Copyright Law must be regarded as a vast improvement over the earlier law from the point of view of educators. It is also a basic updating of the rights of authors in the light of new technologies. The statute clarifies what teachers may do and what they may not do. It reduces the instances in which securing permission might have previously been necessary. It also makes clear that there will continue to be the need to seek permission for certain other uses. The Law specifically exempts certain educational, charitable and religious performances of music from royalty payments without the ambiguity of the old law. It relates to the technology of today's world. The Law also recognizes the special needs of critics, reporters, teachers, scholars and researchers without giving any of them unrestricted privileges.
It is a law that must be understood by music educators, both to improve their teaching and to protect themselves and their schools from incurring liability or subjecting themselves to the possibility of being sued.
Congress, in shaping the 1976 Copyright Law, sought to achieve an equitable balance between creators and users. The organizations which have cooperated in preparing this booklet feel that to achieve such a desirable balance in the observation of the law on a day-to-day basis, 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 be properly compensated for their work in order that the economic incentive and means for the creation and publication of new materials important to educators not be inhibited.
If these factors are borne in mind in the practice and comprehension of the U.S. Copyright Act, a moral climate as well as a legal standard will result and serve to guide all those concerned.
The U.S. Copyright Law is designed to encourage the development of the arts and sciences by protecting the work of the creative 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. These rights, as stated in the law, are:
Once these primary rights are granted, the law proceeds to limit them in certain specific instances. Some of these limitations grant special privileges to teachers. One group of limitations is embodied in the section of the law which outlines the concept of "fair use." For example, courts have generally regarded quotations of an excerpt from a published work, in a review for purposes of illustration or comment or for a news report, as constituting "fair use." Among other limitations are those having to do with library copying, educational and religious performances of non-dramatic literary or musical works, and educational broadcasting.
1. To reproduce.
Limitations upon the exclusive right to reproduce a copyrighted work are dealt with in Sections 107 (Fair Use) and 108 (Library Copying). These sections, as they appear in the law, are reproduced in their entirety in Appendix A.
For such purposes as "criticism, comment, news reporting, teaching, scholarship, or research" the Fair Use provision establishes four factors for determining whether uses for these purposes may be judged "fair," and therefore not an infringement of the owner's rights. The factors are:
The Committee Report of the 90th Congress in 1967 contained discussion of these four factors. In 1975, it was recognized that further clarification was needed and two sets of guidelines were drawn at the request of the House Copyright Subcommittee. One, on Music Materials, was developed by the organizations which sponsor this booklet and the other on Books and Periodicals by representatives of author, book publisher and educator organizations. Both sets of Guidelines appear as Appendices B and C of this booklet.
On the basis of these elaborations of the intent of the law itself, it appears that, without having secured permission, music educators will be able to:
The following are expressly prohibited:
2. To record.
The copyright owner has the exclusive right to reproduce copyrighted works in phonorecords. Limited exceptions to this right are set forth in the Guidelines as outlined previously. 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. Once phonorecords of a non-dramatic musical work have been distributed to the public in the U.S. under the authority of the copyright owner, any other person may obtain a compulsory license to record the work by complying with certain procedures and by the payment of the royalty provided in Section 115 of the Law (currently as of I/l/92, 6.25 cents per selection or 1.2 cent per minute of playing time, whichever is greater).* It must be kept in mind that the first recording of a work and its distribution in recorded form requires the consent of the copyright owner.
3. To prepare derivative works.
Making arrangements of a piece of music is an exclusive right of the copyright owner, but under the music Guidelines amplifying the Fair Use section of the Law the following are, with specified limitations, conceived to be reasonable exceptions:
Anyone wishing to arrange a copyrighted work with the exceptions noted above must obtain permission from the copyright owner. In order to simplify this process, organizations who have participated in the preparation of this booklet have also prepared a standard form for request and grant of permission. A copy of this form is reprinted as Appendix D.
4. To distribute.
The one exception to the exclusive right of the copyright proprietor to distribute copies is that involved in the compulsory license relative to phonorecords as described above in subparagraph 2.
5. To perform.
Complete information concerning licensing of performances of copyrighted non-dramatic musical works may be obtained from ASCAP, BMI and SESAC.*
Although performance is one of the copyright owner's exclusive rights, the special needs of music educators, and others, are recognized in the limitations on these rights and are specified in Section 110 of the Act. Music educators should take special notice of the very limited nature of these exemptions. The following are not infringements:
6. To display.
The owner of a lawfully acquired 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, presumably qualifies as the owner of a school-owned copy. The legislative report accompanying 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. Only the owner of the copy has the privilege of displaying it.
Works created after January 1, 1978 will be protected for the life of the composer (author) plus 50 years. Copyrights in effect on that date, if renewed, will continue for 75 years from the date copyright was originally secured.
Those works in their initial 28-year period of copyright on January 1, 1978 can be renewed for an additional 47 years, while the copyright of works in their renewal term on that date were automatically extended for an additional 19 years.
The remedies provided by the law to a copyright owner may mean that a music educator found making illegal copies, or otherwise infringing, will face:
1. Payment of from $500 to $20,000 (statutory damages) and if the court finds willfulness, up to $100,000 per copyright infringed,
2. If willful infringement for commercial advantage and private financial gain is proved, criminal fines of up to $250,000 and/or five years' imprisonment, or both.
The nature of the remedies provided by the law indicates that copyright infringement is something to be viewed by violators with concern. Teachers should know, however, that if the court finds that the infringer "was not aware and had no reason to believe that his or her acts constitute an infringement" the minimum fine may be reduced.
Moreover, the court is further instructed "to remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107 - if the infringer was ... an employee or agent of a non-profit educational institution, library, or archives acting within the scope of his or her employment...".
This last quotation, from section 504-c-2, should in no way be considered by teachers as all the protection they need for anything they do. As always, ignorance of the law is no excuse. Music educators need to understand "fair use" and make the most of the privileges it grants, but they must also abide by its very definite limitations.
It should be noted that in the late 1980s, certain federal courts had ruled that the 1lth Amendment to the U.S. Constitution may exempt "states and state entities," such as state colleges, from monetary liability for copyright infringement. To clarify its intent that there be no such exemption, Congress acted in 1990 by amending the Copyright Law in that regard. As such, state and state entities are liable for infringement damages.
1. How to tell if a work is protected by copyright. Most copyrighted works bear a copyright notice in which the date of copyright is included. Under the old law, the term of copyright was 28 years with the possible renewal of an additional 28 years. However, during the legislative process leading to the 1976 law, all copyrights from September 19, 1906 which had been renewed but which would otherwise have expired were extended so that they did not fall into public domain. Thus, all subsisting copyrights, if renewed, will have, under the 1976 Act, a term of copyright of 75 years from the date copyright was originally secured. Since all copyrights subsisting on January 1, 1978 must have been or will have to be renewed at the end of 28 years in order to continue to be protected, there is a possibility that no renewal was or will be effected and the work is or will be in the public domain. This is unlikely in the case of those musical compositions with which music educators work.
Editor's Note: Enactment in 1988-89 of changes in the notice provisions of the U.S. Copyright Act consistent with U.S. adherence to the Berne Convention eliminated the necessity of including a copyright notice on copies of copyrighted works. Although an overwhelming percentage of copyrighted works will still carry copyright notices, absence of such notice is not an absolute indication that the work is in the public domain. Currently there is no requirement to indicate notice of copyright renewal on copies of a work. Many works do show renewal by either the statement "copyright renewed" or indicating the year of renewal in the copyright notice, i.e. ã 1910,1938.
2. Out-of-print works. When copyrighted works are out of print it may be, occasionally, that music educators would like to procure a copy or copies for specific purposes. For that reason, the music publishers' trade associations have prepared a simple form relative to the procurement of out-of-print works. The form is reproduced as Appendix E.
3. Performing rights. The following are the addresses of the three performing rights organizations:
American Society of Composers,
Authors & Publishers, (ASCAP)
One Lincoln Plaza
New York, NY 10023
Broadcast Music, Inc. (BMI)
320 West 57th Street
New York, NY 10019
156 West 56th Street
New York, NY 10019
Tams-Witmark Music Library, Inc.
560 Lexington Avenue
New York, NY 10022
Rodgers & Hammerstein Library
1633 Broadway, Suite 3801
New York, NY 10019
Music Theatre International
545 Eighth Avenue
New York, NY 10018
Samuel French, Inc.
45 West 25th Street
New York, NY 10010
Music Publishers' Association
of the United States (MPA)
205 East 42nd Street
New York, NY 10017
7. The Copyright Office
The Copyright Office, the Library of Congress, Washington, D.C., 20559 is a logical source of information about copyrights generally, and the process of protecting musical works.
_107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of section 106 and 106 (A), 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--
_108. Limitations on exclusive rights: Reproduction by libraries and archives
a. 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, or to distribute such copy or phonorecord, under the conditions specified by this section, if--
b. The rights of reproduction and distribution under this section apply to a copy or phonorecord of an unpublished work duplicated in facsimile form 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 the copy or phonorecord reproduced is currently in the collections of the library or archives.
c. The right of reproduction under this section applies to a copy or phonorecord of a published work duplicated in facsimile form solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, if the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price.
d. The rights of reproduction and distribution 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--
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--
f. Nothing in this section--
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--
h. 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).
i. Five years from the effective date of this Act, and at five-year intervals thereafter, the Register of Copyrights, after consulting with representatives of authors, book and periodical publishers, and other owners of copyrighted materials, and with representatives of library users and librarians, shall submit to the Congress a report setting forth the extent to which this section has achieved the intended statutory balancing of the rights of creators, and the needs of users. The report should also describe any problems that may have arisen, and present legislative or other recommendations, if warranted.
The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under section 107 of H.R. 2223. 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 Copyright Revision Bill. 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.
A. Permissible uses:
The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under Section 107 of H.R. 2223. 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 Copyright Revision Bill. 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.
A. 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:
B. 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:
C. 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 reproduced and used separately.
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The 1976 Copyright Law is an honest attempt to balance the rights of the copyright proprietor with the needs of a democratic public and certain of its members such as teachers and librarians. The fact that it took Congress twelve years from the introduction of the first bill to the signing of the law is an indication of how far apart the various interests once were.
Authors, composers, and their publishers felt the need to protect the incentive for creative effort. Teachers, dependent on these creative products as the grist for their mill, were nevertheless also in need of the opportunity to be truly creative in their teaching without the tethers of over-restrictive regulations. The compromise represented by the 1976 law is the result of an empathy that developed over many years of discussion. Key to the understanding was the recognition of the need for the teacher to be able to catch the "teachable moment" without the hamstring provided by the necessity to secure permissions. Conversely, teachers had to recognize the temporary nature of "spontaneity" and be willing to secure permission, or even pay royalties, if continued use was to be made of the material. Coupled with the concept of "spontaneity" was "brevity," and only after some agreement was reached on what is brief (10%) could be prospect for helpful guidelines be foreseen.
Neither spontaneity nor brevity nor any of a number of other factors can be considered alone, however. The criteria for determining "fair use" that were agreed upon in 1967 must be taken in their entirety in application to a specific instance. Applied with the spirit of compromise that eventually manifested itself in the later years of discussion, the "fair use" section (107) should serve well.
As Bernie O'Donnell of the National Council of Teachers of English wrote, the success of the guidelines is now dependent upon the integrity of the teachers and the trust of the creators and their publishers. Clarification by the 1976 law of what "fair use" means could contribute to a flowering of creative production and creative teaching, but only if all parties attempt to understand it as did those involved in the process of developing the legislation. Once understood, it must be used with integrity and mutual trust.