Copyright

The rights provided to copyright holders under the Copyright Act are exclusive, meaning they give the holder the exclusive right to make, reproduce, and distribute copies of the work, prepare derivative works, as well as perform or display the work publicly. However, there are some exceptions under Copyright law that allow works to be used without violating these exclusive rights. These exceptions include, among others:

• Face-to-face teaching,
• Distance learning (TEACH Act), and
• Fair use
  

Additional exceptions not discussed here include the statutory exception for libraries and archives as well as where necessary to ensure access for those with disabil​ities. Many works have also been dedicated to the “public domain,” meaning that they may be used without violating a copyright holder’s rights. Campuses should consult with the Office of Research, a Technology Transfer Office, library or University Counsel to determine whether a copyright exception applies. ​Auxiliaries should consult with their appropriate auxiliary resources.

Face-to-Face Teaching

The Copyright Act includes a face-to-face teaching exemption, which allows instructors to perform or display copyrighted works (e.g., films, writings, etc.) in class without violating the copyright holder’s rights. The exemption does not include the right to make or distribute copies of, or make derivative works based on, the copyrighted works or the right to use the works outside of the classroom setting.

Face-to-Face Teaching Requirements
To qualify for the face-to-face teaching exemption, the following must apply:

• The copyrighted work must be lawfully obtained;
• The institution must be a non-profit, accredited educational institution;
• The work must be used for instructional purposes; and
• The instruction must take place in a class or similar face-to-face instructional setting.

If these requirements are met, then copyrighted works may be displayed or performed in the classroom. This means, for example, that students and instructors can watch movies, perform scenes from a play, or display photographs of artistic works within the classroom for educational purposes without first obtaining permission or a license. This exemption does not apply to other uses of the copyrighted works (e.g., copying or distribution) or to uses outside of the classroom setting. In such cases, other exceptions, such as the TEACH Act or Fair Use, may apply depending on the specific facts and circumstances.

Distance Learning (The TEACH Act)

The Technology, Education, and Copyright Harmonization (“TEACH”) Act of 2002 was enacted as a way to support online education and balance the needs of distance learning with the rights of copyright holders. The TEACH Act made copyright laws and requirements for distance learning similar to those for face-to-face teaching, though there are still significant differences. The TEACH Act permits educators and students to transmit performances and displays of copyrighted works as part of a distance learning course if the requirements of the TEACH Act are met. Any distance learning activities outside the protections of the TEACH Act would need to have permission or qualify for another exemption (e.g., public domain, fair use, etc.).

TEACH Act Requirements

The TEACH Act requires that academic institution​s meet a variety of requirements in order for its exemptions to apply. These requirements ensure that the copyrighted works are being used in a permitted manner and that the academic institution has sufficient policies and practices in place for copyright compliance and education. These requirements include, among others:

• The institution must be a non-profit, accredited educational institution;
• The use of copyrighted materials must be provided at the professor’s direction during the relevant lesson;
• The copyrighted materials must be directly related to the content being tau​ght and of material assistance to teaching the content;
• The work may be displayed only in an amount comparable to what would be seen in a live class (e.g., does not cover materials students would be expected to review or study on their own);
• Access to the copyrighted materials must be limited to students enrolled in the particular class (e.g., the materials are not available to the general public or those not currently enrolled in the class);
• The copyrighted works used are not those specifically excluded from coverage under the TEACH Act, including: materials specifically marketed for classroom use for distance learning, textbooks, coursepacks, electronic reserves and similar materials typically purchased by students;
• The professor may not make copies of the copyrighted works other than the one needed to make the online transmission (e.g., the copy needed to be able to create the digital work);
• The institution must have developed and publicized its copyright policies, specifically informing students that course content may be covered by copyright, and include a notice of copyright on the online materials; and
• The institution must implement technological measures to ensure compliance with copyright law and policies.

Materials permitted to be used under the TEACH Act include:

• Entire performances of nondramatic literary and musical works;
• Reasonable and limited parts of a dramatic literary, musical or audiovisual work; and
• Displays of other works, such as images, in amounts similar to typical displays in face-to-face teaching.

Fair Use

The “fair use” doctrine allows limited use of copyrighted material without requiring permission from the owner and protects certain uses from copyright infringement actions. Examples of fair use include: use of a work for criticism, comment, news reporting, teaching, scholarship, or research. However, the fair use inquiry is holistic and there are no bright-line rules. Rather, courts use a case-by-case analysis and look to the purpose and character of the use (e.g., commercial vs. non-profit), na​ture of the copyrighted work, amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of use upon the potential market for or value of the copyrighted work. All four factors must be analyzed in making a fair use determination and courts differ on the relative weight given to each factor. Consequently, the scope of fair use is an unclear and inconsistent area of copyright law. Campuses should consult with the Office of Research, a Technology Transfer Office, library or University Counsel before making a determination that the “fair use” doctrine would apply to a proposed use of copyrighted material.​ Auxiliaries should consult with their appropriate auxiliary resources.

Public Domain

A public domain work is a creative work that is not protected by copyright and that may be used without violating copyright law. However, all works published in the United States before 1923 are in the public domain. ​Individuals are able to use works within the public domain without first obtaining permission or a license to use the work.

Works may fall within the public do​main in any of the following ways:

• The copyright for the work has expired or been forfeited (e.g., the copyright term has expired or not been renewed, copyright notice was not provided, etc.);
• The copyright owner dedicates the work to the public domain; or
• Copyright law does not protect the work (e.g., work created by federal employees, facts or ideas, etc.).

There are many sources of public domain work. Below is a list of some potential sources, though users should confirm that a work is dedicated to the public domain before using.

• Project Gutenberg
• Project Bartleby
• The Universal Library
• Federal Government Materials
• Free Music Archiv​e
• Mutopia Project
• Open Music Archive
• Museopen
• Flickr Commons
• Pixabay
• Pixlerockstar

Playing Music on Campus

License Requirement

The performance or playing of copyrighted music on campus typically requires that the campus have licenses with Performing Rights Organizations (“PROs”) such as ASCAP, BMI, SESAC, SoundExchange, and GMR. These PROs distribute money derived from the licensing fees to the songwriters, musicians, and publishers who copyrighted the works. If a license exists between a particular PRO and the campus, any of that PRO’s collection of songs can be played on campus generally (i.e., at concerts, dances, mixers or student clubs; in coffee houses, pubs, and student unions; in bookstores or cafeterias; in exercise classes; at athletic and other events on campus; etc.).

Negotiating a Standard Music License Agreement

Campuses must decide with which of the PROs to enter licensing agreements. The PROs maintain lists of the songs in their repertories on their websites. Therefore, before any public playing of a song – live or recorded – on campus, it would be prudent to check if the work is listed among the works controlled by a PRO with which the campus has already contracted. ASCAP and BMI reportedly control over 70% of the music in the United States. PROs say they monitor, from time-to-time, public venues to ascertain whether their music is being played without a license, and have been known to make a demand for significant monetary damages and threaten legal action for copyright violations in such situations.

Some of the PROs have standard university license agreements that they have negotiated with the National Association of College and University Business Officers or the Office of General Counsel. In other instances, the campus will need to negotiate the content and cost of a licensing agreement. The rates charged usually are based on how many full-time equivalent students are at a campus.

Supplementing with Other Music Licenses Based on Campus Activities

Depending on the nature of campus activities, a basic PRO performance rights license agreement might need to be supplemented with other licenses. For instance, the campus may need to add a license for grand rights, which would grant permission to perform music in staged works, such as plays, musicals, or operas. Sometimes grand rights can be negotiated for certain works by contacting organizations such as the Tams-Witmark Music Library, Inc., the Rodgers & Hammerstein Organization, Music Theatre International, and Samuel French, Inc. Otherwise, it may be necessary to reach out to the individual copyright owners, publishers, or writers to negotiate the fees for the right to perform their works on stage.

If a campus wishes to stream copyrighted music via certain digital transmissions, including satellite radio, non-interactive internet radio, cable TV music channels, and similar platforms, it will need a streaming license. SoundExchange usually is responsible for collecting and distributing these royalties on behalf of recording artists, master rights owners, and independent artists.

If a campus wants to incorporate copyrighted music into a visual or multimedia product, it will need to acquire a synchronization license. This scenario most often arises when creating commercials, marketing materials, or YouTube videos for the university or other organizations within it. This type of license is usually obtained from publishing companies directly. In a limited number of cases involving popular musical works that are commonly used for such purposes, these licenses may be available from Stockmusic.net, Getty Images, GreenLight Music, and The Music Bed Company.

If a campus wants to reproduce and distribute copyrighted songs on CDs, records, tapes, ringtones, permanent digital downloads, or interactive streams, it will need a mechanical license. These usually can be acquired by contacting the Harry Fox Agency, which is owned by SESAC.

Limited Exceptions to License Requirement

There are four main exceptions when a campus does not need to have a license agreement:

1. Under the Classroom Use Exception, an instructor may play copyrighted music when doing it in person and face-to-face with students.
2. In a very limited number of situations, portions of a song or musical compilation, but generally not an entire work, can be performed on campus under the Fair Use Doctrine if the use is sufficiently transformative (e.g., a parody of a song with different words to the same tune).
3. No license agreement is needed to play music that is in the public domain, whi​ch generally includes music published in 1924 or earlier. However, a performance of a very old musical work, like a recorded song by a particular performer, might bear a different, more recent copyright date. Sometimes creators of musical works will also place their works in the public domain or grant the public use of them with a royalty free license (like a Creative Commons License). There are websites that list such songs.
4. With regard to online instruction, the TEACH Act of 2002 allows for lawfully obtained copies of musical works to be played during online instruction if the other requirements of the TEACH Act are satisfied.