Music on ereserve
- August 30, 2006 @ 9:40amwilliamsonl says:The music teacher would like to post an entire CD in electronic reserve for a class. The CD is of a Brahm's symphony recorded in 1982.
For: My reasoning is that this is okay under TEACH, provided we meet the provisions of the act. This is something that would be played in the classroom in the f2f class. The guidelines from the Music Library Assocation seem to me to also support this as a legal use. http://www.musiclibraryassoc.org/Copyright/Guidelines/Accepted%20Guidelines/Digital%20Reserves.asp
Against: My reasoning is that we are copying the entire CD and could be said to be subtituting the ereserve file for purchase of the CD. The students aren't required to purchase the CD in the f2f class as they listen to it there, but I can see this as a valid argument also.
Does it make a difference if the class is f2f or online? We can't use TEACH if it is not distance, right?
Any opinions or reasoning for or against?
- August 30, 2006 @ 1:09pmksmith says:As I read the text of section 110(2), I do not see anything that distinguishes truly distanced education classes from hybrid classes that meet face-to-face but also make materials available by "transmission" via Blackboard or an e-reserves system. I have heard before the argument that TEACH Act provisions do not apply to course management systems, presumably because they are usually not true distance education, but I have yet to encounter a convincing reason for this claim.
As for the worry about substituting for the purchase of the CD, isn't that what library reserves always do? We put physical books on reserve in order to prevent the students from having to purchase too much material, especially supplemental readings. So, by itself, I don't think that argument undercuts use in a reserves system; this is one of those cases where the relevance of the fourth fair use factor really depends on the evaluation of the first (and possibly the third) factor -- if the purpose of the use passes muster, the effect on the market is less important.
Nevertheless, I think a lot depends on whether you can make a TEACH Act argument or if you must rely on fair use. If the reserve system can be restricted so that only students registered for a class can access material on reserve for that class, the TEACH Act argument might work, in which case using the whole of a non-dramatic musical work is defensible given the language of the provision. If all students at the school have equal access to the system, it seems to me you must rely on fair use, and the use of the entire work will then count against you.
- August 31, 2006 @ 6:58pmRDavis says:I read the TEACH Act provisions a bit differently -- and I never see this aspect of TEACH brought up, so I'm curious what others think.
TEACH says you can display or perform via digital transmission "a nondramatic literary or musical work or reasonable and limited portions of any other work" if you meet all of its requirements. Of course, the example under discussion potentially involves two separate copyrights -- one for the original Brahms composition, a nondramatic musical work, and one for the sound recording of the 1982 performance. Obviously, the Brahms composition has long since passed into the public domain, so all we're really concerned about is the copyright in the sound recording.
People usually seem to gloss over the distinction between the two copyrights and think that TEACH's allowance for performing an entire nondramatic musical work extends to the sound recording as well. But if you read the House Report that accompanied the final bill for the TEACH Act, it is clear (to me anyway) that this was not the intention of Congress. See the fourth paragraph in the "Purpose and Summary" section of the House Report (http://thomas.loc.gov/cgi-bin/cpquery/?&dbname=cp107&sid=cp107UljC9&refer=&r_n=hr687.107&item=&sel=TOC_2692&) (or, for those who prefer a tiny URL, http://tinyurl.com/pt2e5):
"The TEACH Act amends sections 110(2) and 112 of the Copyright Act to facilitate the growth and development of digital distance education. The act expands the exempted copyright rights, the types of transmissions, and the categories of works that the exemption covers beyond those that are covered by the existing exemption for performances and displays of certain copyrighted works in the course of instructional transmissions. Thus, for example, it allows transmissions to locations other than a physical classroom, and allows for performances of reasonable and limited portions of audiovisual works, sound recordings, and other works within the scope of the exemption."
It's pretty clear from the last sentence in this passage that sound recordings are included among the "other types of work" for which TEACH only allows "reasonable and limited portions" -- and that they should NOT be assumed to be covered by the TEACH allowance for performance of an entire nondramatic musical work (i.e., composition).
This just goes once again to show the uselessness of TEACH, IMHO. Because if this is the case, it means that an instructor could pick up his guitar and sing "Lucy in the Sky" in its entirety (or record himself singing it) and then transmit it digitally to his students under the TEACH exemptions. But if he actually wanted to play (i.e., "perform") the Beatles' copyrighted sound recording of the song via digital transmission to his students (a much more likely scenario) he can't do this under TEACH, because TEACH only allows him to use a reasonable and limited portion of the sound recording.
I think LWilliamson can't really use TEACH for her situation, but needs to rely on fair use instead. Unfortunately, I don't think fair use allows streaming of the entire sound recording either, at least not unless you take an "expansive" view in light of the fact that permission to use sound recordings is nearly impossible to obtain for educational uses. Fair use factor 1 (purpose) is in her favor, but factors 2 (nature of work) and 3 (amount used) are not. So you go into factor 4 (market effect) with the scales tipping against you. This would seem to indicate that permission should be sought, but if the library gets no response to their permission request (which is likely but not necessarily certain) and they can document their attempt to get permission, then perhaps they can prove that there was no adverse market effect from their use -- especially if they also own an original, purchased copy of the recording.
- September 1, 2006 @ 7:41amksmith says:Although I agree that the TEACH Act revision of section 110(2) is difficult to use, I don't think it is useless. In fact, I think we need to use it as best and as widely as we can until we have sound reason to think we can't use it. I want to resist self-censorship around the TEACH Act as much as that which often inhibits fair use.
The legislative history quoted does not worry me as much as it does RDavis, for three reasons.
First, it nowhere mentions the distinction between different copyrights -- that of the composer v. that of the performer, for example. Given the language at the beginning of 110 that says "the following are not infringements of copyright" without distinction between which copyrights are being excepted, the fact that two or more copyrights may exist in a musical composition seems irrelevant.
Second, the language quoted from the legislative history is quite general, lumping together all kinds of works in a single sentence while referring to "reasonable and limited portions." I don't think this imprecise language should frighten us into construing the much more specific language of the staute itself in a restricted way. We simply don't know which audiovisual works and sound recordings the legislative history is referring to; if it refers to all such works, why does the language of the staute make a distinction? The sentence does not seem "pretty clear" to me; it seems like a sweeping generalization.
Finally, it is a recognized canon of stautory interpretation that legislative history is only relevant for understanding the meaning of the law when the language of the statute itself is unclear or ambiguous. The language in 110 -- "the performance of a non-dramatic literary or musical work or limited portions of any other work" -- seems to clearly distinguish the situation where a whole work can be transmitted from those where we must wrestle with "reasonable and limited portions." It seems a mistake to me to let the legislative history muddy the reletively clear waters of the staute as actually adopted.
- September 3, 2006 @ 6:12pmRDavis says:I wish I was as certain as ksmith that section 110(2) as it's currently written implicitly allows the performance of entire sound recordings of nondramatic musical works, but I'm not.
I'm sure that a lawyer for the RIAA would also claim that the language of sec. 110(2) is clear and unambiguous, only he or she would argue from the other position: The law says you can perform all of a nondramatic musical work (i.e., composition) via digital transmission, but it doesn't say you can transmit an entire sound recording. Sec. 106 not only gives copyright owners the exclusive right to publicly perform musical works, it also grants the exclusive right to perform a sound recording publicly by means of a digital audio transmission. I can see where sec. 110(2) limits the exclusive rights in regard to performing an entire musical work, but I can't see where it allows me to transmit a copyrighted sound recording in its entirety. I'm just personally not comfortable saying the law is vaguely written and assuming that that will get me off the hook.
The very fact that ksmith and I disagree on what the language of sec. 110(2) does and doesn't allow shows that reasonable people can reach different conclusions about what the language of the statute actually says. (And I really don't think our disagreement is due solely to me reading too much into the law and allowing the legislative history to "muddy relatively clear waters.") Since the language of the statute itself has led us both to different conclusions, I don't think it's too much of a reach to expect that a judge would look to the legislative history--if he or she even deemed that necessary--to discern the true intent of Congress when it passed the TEACH Act.
In the report she prepared for Congress as U.S. Register of Copyrights--the report whose recommendations were incorporated into the TEACH bill that Congress subsequently wrote--Marybeth Peters explicitly discussed the pros and cons of expanding section 110(2) to include sound recordings and other specific types of works, such as dramatic works and audiovisual works. She ultimately concluded that a better compromise would be for Congress to allow "reasonable and limited" portions from sound recordings, dramatic works, and audiovisual works. Her recommendation was adopted verbatim by Congress in the TEACH Act, and the fact that sound recordings are among the "other types of works" mentioned in the bill is reflected unambiguously in several places in the Congressional record.
Marybeth Peters also gave a statement to the Senate Judiciary Cmtee. on S. 487 (the Senate version of the TEACH bill) on Mar. 13, 2001 in which she summarized the changes to sec. 110(2) contained in the TEACH Act. She noted that TEACH allowed new types of works to be performed over digital networks, but that use of these new types of works was limited:
"The other expansion of the scope of the exemption accomplished by the bill is to allow performances of categories of copyrighted works other than the nondramatic literary and musical works that already may be performed under current law. ...However, as our Report also recognized, the potential impact on secondary markets for the principal categories of works that are affected by this expansion - audiovisual works, sound recordings, and dramatic literary and musical works - could be substantial. Transmission of entertainment products like motion pictures and sound recordings could well substitute for students paying to enjoy them elsewhere. The bill addresses this concern by limiting performance of the newly-added categories of works to "reasonable and limited portions." (http://www.copyright.gov/docs/regstat031301.html)
I'm really not sure how much more explicitly it could be stated.
TEACH was certainly an improvement over the previous, outdated sec. 110(2), but the question is whether it was *enough* of an improvement to be of real, practical use for digital distance education in all the ways we had hoped. I agree wholeheartedly with ksmith that we need to resist the kind of self-censorship that inhibits us from making use of the statutory limitations on copyright, esp. fair use. I just think that, given the choice between fair use and TEACH, we're usually better off with the former.
- September 6, 2006 @ 5:24amksmith says:I am not sure there is much point in continuing this thread since the harm I feared from the beginning -- frightening librarians and educators from using the rights Congress tried to give us -- has probably already occurred. But I would like to have one more stab at returning us to the actual text of the statute.
Cutting through all the verbage of legislative history, the issue between RDavis and me is whether or not the phrase "any other work" includes all sound recordings of any description, whether of dramatic or non-dramatic musical works. Ms. Peters' comments before the Senate Judiciary Committee seem to say that it should. But comments before a committee are not the law, and it is not clear to me that her interpretation actually is embodied in the statute that governs us.
If sound recordings are included in "any other work" then the distinction in the previous clause, which permits the transmission of entire performances of non-dramatic musical works, is empty of meaning. All it would allow is transmission of unfixed live performances. If that is now the case, the TEACH Act has actually rendered the amended version of 110(2) less useful then the "previous, outdated" version. Prior to 1995, at least, it was very clear that 110(2) permitted the transmission of recordings of non-dramatic musical works. The addition of the limited performance right in digitally transmitted sound recordings (106(6)) in 1995 complicated that picture some, and part of the purpose of the TEACH Act was to fix that problem. If the authors of the TEACH Act, who took that first clause of 110(2) about non-dramatic musicaol works directly from the previous version of the section, actually intended to except only the right in the composition and not the other 106 right in digital transmission, they did a remarkably bad job. The inclusion of the phrase from the original version of 110 would now be completely meaningless. Judges often complain about an interpretation of the law that results in passages being render "mere surplusage." They try to insist that Congress intends the words that it incorprates into statues to have meaning. For the full phrase in 110(2) to have meaning, it must be applying the distinction between dramatic and non-dramatic musical works to all performances, including those fixed in recordings.
Of course, this is one of those things we will not know for certain until a court decides for us. Were I arguing before such a court, I would at least prefer to rely on the wording of the law rather than selected chunks of legislative history. But the absence of a judicial ruling ought not to discourage us, since it indicates the lack of lawsuits against non-profit educational institutions that are using the TEACH Act.
- September 7, 2006 @ 7:54amRDavis says:I don't want to continue this thread indefinitely either, but I'd like the chance to make my final contribution as well...
I raised this issue not out of a desire to cause "harm," but because I've noticed there is much confusion surrounding it. Surprisingly, I've hardly seen this distinction b/t rights granted by TEACH for use of musical works (i.e., compositions) and for use of sound recordings addressed in the professional literature. If librarians and educators are assuming they have more rights to transmit works digitally than the law provides, I think it's best that they know it, rather than operate under mistaken assumptions. We should certainly use any exemption that applies to our proposed use of a copyrighted work, but we should use the exemption in a properly informed manner. That's what this whole site is about -- or, at least, it's what I've always taken the site to be about.
It's not accurate to say that prior to 1995 sec. 110(2) "clearly permitted the transmission of recordings of non-dramatic musical works." It didn't have to permit such transmissions because public performance of a sound recording was not an exclusive right of copyright owners at the time -- it still isn't, actually. The only public performances of sound recordings that are currently restricted by law are those made via a digital transmission.
I'm sorry to have to keep quoting from the authorities, but it's the best way to demonstrate that this isn't just my own opinion or faulty understanding. Ms. Peters' 1999 "Report on Copyright and Digital Distance Education" included a description of the 110(2) exemption as it then existed, before TEACH. On p. 79 she states:
"Nor is the performance of sound recordings authorized by sec. 110(2). This is not due to concerns about market impact, but rather because there was no exclusive right at the time for any type of performance of sound recordings, and therefore no need for an exemption" (p. 79)
Prior to TEACH we were able to perform sound recordings in educational TV and radio broadcasts not because sec. 110(2) allowed it, but because there was no law that prevented us from doing so. Then in 1995 Congress added to sec. 106 the limited performance right in digitally transmitted sound recordings. Once we switched from analog TV and radio instructional broadcasts to digital transmissions of content, our activities were now subject to this new exclusive right. As I think I’ve already demonstrated, TEACH did not give us a statutory exemption that permits the digital transmission of an entire sound recording; it only gave us the right to use “reasonable and limited portions.”
So finally we’ve come to a point of agreement between ksmith and me: The amended version of 110(2) created by TEACH is actually less useful than the previous, outdated version of the section. The Copyright Office and Congress both failed to recognize that the the scope of rights granted by sec. 106 had expanded since 1995 and that the technology used to facilitate educational transmissions had changed such that our activities were now covered by a new statutory prohibition. Instead, they caved to the content industry’s lobbying and fear of unauthorized digital transmissions of their works, giving us in the end a very flawed law.
- September 8, 2006 @ 5:22amksmith says:Just for the record, it is possible to find discussions of this problem in the legal literature. I will cite below two articles for anyone with the temerity to pursue this tangle. I must confess, however, that both the cited articles come down on the position for which RDavis has argued, although they do note the odd situation created thereby, where the right of a music publisher in a sound recording is excepted but the performer in the same recording can demand a licensing fee if the whole work is transmitted. In effect, the cost of the exception is placed entirely on the back of the publisher alone.
Interestingly, both articles defend this reading not from the text of the TEACH Act, but, like RDavis, primarily based on Registrar of Copyrights Peters' report. To my mind this reading does violence to the actual language of the statute and deferring to it gives the Copyright Office quasi-legislative power well beyond its defined function.
Here are the articles I looked at; I believe others can be found with a more careful search than I performed:
Tomas A. Lipinski. "Legal Reform in an Electronic Age: Analysis and Critique of the Construction and Operation of S. 487, the Technology, Education and Copyright Harmonization Act of 2001," 2003 B.Y.U. Educ. & L.J. 95 (2003). See esp. pp. 157-159.
Kristine H. Hutchinson. Student Note, "The TEACH Act: Copyright Law and Online Education," 78 N.Y.U.L. Rev. 2204 (2003). See esp. FN 80.
- September 10, 2006 @ 10:56amRDavis says:Thanks for the article citations. I rather stupidly failed to consider law review articles when I said I hadn't seen the topic addressed much in the professional literature. I was thinking only about library journals, but as a librarian who has to deal routinely with copyright issues I really should have known better!
- September 13, 2006 @ 1:37pmCStewart says:Just chiming in that I agree TEACH is not as useful in this case as we might wish. We don't apply TEACH at our institution, relying instead on a fair use analysis. And I just wanted to agree with the Music Library Association's interpretation (see the original post) that this should be an allowed use. According to a fair use analysis, you've got at least two factors in favor of the use (nature of use, market effect), and possibly three according to how you interpret amount: note the ARL statement on reserves and the IUPUI fair use checklist both suggest extending the amount evaluation to take into account the educational objective and the overall amount of work assigned.
When we stream a/v material, we take the added precaution of limiting access to students in a course via the course management system, and using a streaming server, rather than a delivery method that involves a download.
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