Copyright Issues 1 Running head: COPYRIGHT ISSUES

Amy Crouse LI 866 Introduction to Copyright and Licensing Copyright Issues in the Elementary Music Classroom November 25, 2011

Copyright Issues 2 Introduction The elementary school setting is a challenging environment for copyright issues. The elementary music classroom is one of the centerpieces of that challenging environment. Whether through general lack of knowledge or a dont ask dont tell policy, many elementary music teachers are breaking the law while some are only bending it to suit their individual needs. Some teachers are afraid to use copyrighted materials in their classroom due to the advice of various experts in their building. As a result of poor guidance, counterproductive guidelines, and fear, teachers use less effective teaching techniques, teach and transmit erroneous copyright information, fail to share innovative instructional approaches, and do not take advantage of new digital platforms. This is not only unfortunate but unnecessary, since copyright law permits a wide range of uses of copyrighted material without permission or payment. However, educators today have no consensus around what constitutes acceptable fair use practices (Hobbs, 2007). This paper will attempt to present some of the most common copyright issues prevalent in the general music classroom setting. Daily Lessons The students enter the music room while a pre-recorded CD is playing on the stereo. This CD forms the basis of a listening lesson either on a particular composer or a particular style of music. No one is singing along, the students are only listening for specific characteristics in the music. The teacher owns the CD or recording or has checked it out from the library. Is this an acceptable use?

Copyright Issues 3 According to p. 53 of the Hirtle Text, almost all sound recordings, regardless of when they were made, are protected to some extent by copyright law. If the recording was published prior to February 15, 1972, the recordings are protected by state common law copyright. California will allow sound recordings to become public domain in 2047. The state of Kansas, and most other states, use a combination of legislation to protect the recordings until 2067 when all recordings made prior to 1972 will become public domain. The only sound recordings that have currently entered the public domain are those published between 1972 and 1989 without proper notice of copyright. All other sound recordings are protected (Hirtle, p. 54). Most likely, the music, the words to the songs and the recording are all copyright protected with different owners for each component. Because of 110(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, is perfectly legal. Table 5.1 on p. 88 of the Hirtle text shows how the law gives permission to play the songs. This usage would fall under the teaching category. This example favors fair use because of the educational setting and the fact that the recording will be used in a non-profit institution. This usage would argue opposition to fair use because of the possible entertainment value. Frequently, listening lessons are centered on particular composers. Credit should be given to the composer.

Copyright Issues 4 Print music Many school music educators no longer have a budget for their programs. They are still required to perform programs for parents for each grade level and keep the students entertained on a daily basis, all without spending any money (other than that coming from their own paycheck). Because of this, it is common to order one copy of a piece of octavo music and type out the words for distribution to the individual students. The other chosen remedy for this situation is to order one directors score and Xerox the individual songs for student use. When the program is memorized, the copies are destroyed. With programs costing approximately $100 apiece, not including the cost of the accompaniment CD, this solution occurs often. There is nothing legal in this scenario. Xeroxing music is illegal. The music publisher spent thousands of dollars publishing the musical and the only orders are for a directors score and an accompaniment track. Can the publisher then afford to publish another musical next year? If copying music was legal, there would be no reason to publish it. If no one was required to pay for the finished product, publishers would stop publishing. When a teacher purchases a published musical, they own a copy of the musical, not the composition itself. Mr. Althouse states: The harm is not that a publisher may earn less money, or that a composer may have to supplement his income by selling Chevrolets. The real harm is that the public benefit of copyrightthe tens of thousands of published musical works now available for salemay disappear (Althouse, p. 11).

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Two examples of fair use apply when copying music. The first involves emergency copying to replace copies that were purchased but are not currently available for a performance. The Music K-8 website list serve recently reported that a Utah church burned to the ground and inside were 150 copies of their Christmas cantata to be performed the first week of December. Calls for help went out to the list members to find a replacement copy. Copies were made of the directors score to practice with until replacement copies of the scores arrived for the upcoming performance. According to page eight of the document Educational Uses of Music, 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 is perfectly acceptable (2011). In the same document, Educational Uses of Music, the stated purpose of the fair use guidelines is to communicate "the minimum and not the maximum standards of educational fair use under Section 107." The notes also state that "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 (2011)." The guidelines are not law, they are a framework to see if the usage fits. If the desired use does not fit into the guidelines then the user should evaluate the usage in accordance with the fair use consideration factors provided in Section 107 of the Copyright Act. The second example involves copies for teaching purposes other than performance using excerpts of less than ten percent of the whole work. One copy per student is allowable under the guidelines of fair use. If a teacher makes a copy of this

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nature, the copyright notice which appears on the legitimate copy must be included on the photocopy (Educational Uses of Music, p. 6). Instrumental example Many band teachers copy the original instrument part to give to the student rather than giving them the original copy of the music. This is done so that when the student loses their copy of their instrument part, the entire piece is still usable. Many publishers will include a license with each composition giving the purchaser permission to make copies of parts at no charge to them. Sometimes the publisher will include a form allowing the purchaser to make copies of the parts for a small fee. For solo and ensemble festival performances, many directors write for permission to copy rather than buy multiple copies of the same solo so that judges and students both have an original. Recording performances The P.T.A. president asks that a school group perform songs for an ice cream social on the school grounds outside in the spring. The group would like to record the performance and sell copies of the CD to interested parents. This example brings up two separate issues. First, performing songs for pay and second, selling copies of a CD to parents. 110(4) provides an exemption for 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

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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: Performing for profit would require that the school use the money specifically for something educational, in this case, to buy instruments for the music department. Recording and selling the CDs would require a license and written permission from the publisher. A popular teaching resource, the Music K-8 magazine allows reproduction of all the music and other reproducibles in the magazine for use with students. According to the licensing guidelines of the magazine, the accompaniment CDs may be copied for back-up use but not for distribution to anyone else. The article suggests writing for permission for anything that does not fit into the guidelines (Jennings, p. 78). Students often like the songs in this resource and ask for copies of the music or CDs to take home. This falls under the exclusive right to reproduce and is not permissible. Videos/DVDs in the classroom Many classroom teachers will bring a video from home to share with the students as a reward for good behavior. Music teachers will use movies as rewards for concert participation. If the video/DVD is being shown for an educational purpose, fair use

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guidelines would apply. If being shown only for entertainment purposes, this is in direct violation of the FBI warning posted at the beginning reminding that the tapes/disks are for home use only. Some schools own a license to show videos but those are specifically recorded off of an educational channel with permission to tape given to the individual building. History Copyrights are exclusive. They either allow or forbid certain uses of a work for a certain period of time. In the United States Copyright Law Chapter 3, there are statutes that define those periods. Copyright gives the author and the person that they are working for at the particular time (in the case of government employees), the legal right to control who may copy, adapt, perform, distribute or display their work with some legal exceptions. The copyright term extension act was passed in 1998 and extends the length of the copyright an additional twenty years. Title 1 of the Copyright Term Extension, Section 102 Duration of Copyright Provisions, is the Sonny Bono copyright Term Extension Act or the Mickey Mouse Protection Act (Johnson, p. 373). This act serves to extend the copyright terms in the United States by twenty years. Before this act was created, copyright would last for the life of the author plus another fifty years. In 106 of the copyright law, copyright owners are allowed to reproduce their work, prepare derivative works, give copies to the public either by selling them or transferring the ownership, performing or displaying the work publicly and, in the case of sound recordings, perform the work publicly by means of digital audio transmission.

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Before the invention of the phonograph, music publishers earned money from the sale of printed music. Between 1900 and 1910, over 100 songs sold more than one million copies of sheet music. With the invention of the player piano in the 1880s, piano rolls were the first way to record a song. With a player piano and some piano rolls, anyone could enjoy music in their home. Piano roll manufacturers were limited by copyright laws so publishers granted licenses for the mechanical reproduction of songs on their piano rolls. Popular hit songs meant that the manufacturers were willing to pay a lot of money to license them. By 1909, the Aeolian Piano Roll Company was paying huge fees to gain exclusive rights to piano roll recordings. This mechanical right was debated during the Congressional deliberation regarding this law in the Copyright Act of 1909. Congress did not like that one company was ruling the entire industry. The result was the statutory Mechanical License which says that once a copyright owner records a song for public use, anyone could record the song by following certain procedures which included the payment of two cents per recording to the copyright owner. This law was a huge benefit to the publishers when records replaced piano rolls and began to sell in mass quantities. Each copy that was sold paid two cents to the publisher and the composer usually made half of that amount. When Congress decided to seek a new law to replace the 1909 version, the mechanical license term remained (Althouse, p. 32).

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Conclusion The fair use guidelines to the United States Copyright law 107 are guidelines to identify the minimum standards of copyright for educational uses. If the proposed usage does not fall within one of these guidelines, the user should do a full fair use analysis using the K. Crew checklist for guidelines of fair use (2008). With knowledge of the laws and information retrieved from books and the web and even other educators and librarians, there is no excuse for the blatant copyright infringement that goes on in the public school system today. Pleading ignorance is no longer acceptable. Peoples livelihoods depend upon their making money from works that they have created. With the wealth of information available on the subject and the ease of finding this information, educators have no excuse not to comply with the law. Students need to be taught by example. Correct source citations are now available at the click of a mouse button. Educators and librarians need to lead in the clicking of that button.

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Annotated Bibliography Althouse, J. (1984). Copyright: the complete guide for music educators. East Stroudsburg, PA: Music in Action. This reference guide is very helpful in determining what is and what is not legal in the music education setting regarding copying of music. The author is a well-known composer, musician and classroom teacher. He has served as a rights and licenses administrator for a major educational music publisher. He has also served on the executive board of the Music Publishers Association of America. Mr. Althouse has researched most every setting that an educator would have questions about and he includes them in this book. The writing is clear and concise and makes for an easy reference source for the music teacher. Brown, L. C. (2009, April 22). Copyright: performance exemptions. Retrieved from http://www.menc.org/v/general_music/copyright-performance-exemptions/ The National Association for Music Education sponsors this site with current rulings on all aspects of copyright. The entire website contains a wealth of information for the music educator. Specific topics are covered on a monthly basis regarding issues in the use of music for performance. Ms. Brown is a member of the MENC staff and is responsible for compilation of the monthly topics and comments. Crews, K. (2008). Fair use checklist. http://copyright.columbia.edu/copyright/files/2009/10/fairusechecklist.pdf The fair use checklist is a guideline for understanding fair use in the classroom or library setting. Educational uses of music. (2011). Informally published manuscript, UW Copyright Connection, Washington University, Tacoma, University of Washington. Retrieved from http://depts.washington.edu/uwcopy/Using_Copyright/Guidelines/Uses.php This document gives a very basic overview of the copyright guidelines for emergency copying of music. The article also covers performance rights as outlined in the Library of Congress document. Reproduction of Copyrighted Works by Educators and Librarians (Library of Congress, Copyright Office, Circular 21, 1995). Items that are prohibited are also included. The document is very brief and I did not find it very helpful. Gibaldi, J. (2003). MLA handbook for writers of research papers. (6th ed., p. 2). New York: The Modern Language Association of America. This book is basically the equivalent of the APA style guide only for the MLA version. Other than a very interesting and informative section on plagiarism, the book was not very helpful. Mr. Gibaldi is the MLA Director of Book Acquisitions and Development. Copyright Issues 12

Harrington, J. G. (1989). Performance and copyright: avoiding the pitfalls. National Forensic Journal, 7(Fall), 127-132. Retrieved from http://cas/bethel.edu/dept/comm/nfa/journal/vol7no2-4.pdf Mostly pertaining to theatrical performances and forensic tournaments, this article was very informative. I shared it with our theater teacher at school and she found it very useful. Mr. Harrington is a partner in the law firm of Dow, Lohnes and Albertson in Washington D.C. His firm specializes in theatrical aspects of copyright law. Hirtle, P., Hudson, E., & Kenyon, A. (2009). Copyright and cultural institutions. Ithaca, NY: Cornell University Library. This course textbook includes a wealth of information on all aspects of copyright, not just that which relates to the education or music areas. The authors have done an excellent job of explaining, in clear and concise format, the myriad of copyright laws and guidelines. This book is an excellent resource for reference when answers to copyright questions are needed. Peter Hirtle is a senior policy advisor in the Cornell University Library with a special mandate to address intellectual property issues. He also serves as the selector for US and general history, genealogy, and information science. Previously at Cornell, Mr. Hirtle served as Director of the Cornell Institute for Digital Collections and as the Associate Editor of D-Lib Magazine . He is an archivist with an MA in History from Johns Hopkins and an MLS in archival science from the University of Maryland. Mr. Hirtle is a Fellow and Past President of the Society of American Archivists and is a member of its Working Group on Intellectual Property. He was a member of the Commission on Preservation and Access/Research Library Group's Task Force on Digital Archiving and the Copyright Offices Section 108 Study Group, and is a contributing author to the LibraryLaw.com blog Hobbs, R., Jaszi, P., & Aufderheide, P. (2007). The cost of copyright confusion for media literacy. Washington, D.C.: Center for Social Media. http://www.centerforsocialmedia.org/fair-use/best-practices/media-literacy/cost-copyrightconfusion-media-literacy-0 The authors of this booklet are from the Center for Social Media and are experts on copyright and fair use. The book talks about how teachers are afraid to use copyrighted materials in their classrooms for fear of breaking the law. Jennings, T. (2011, November). Copyright. Music K-8, 22(2), 78. The most helpful journal for the music educator, this magazine features songs, lesson ideas, classroom tips and copyright guidelines. The copyright policy of this resource includes permission to copy songs for each student. An accompaniment CD is also included for performances at concerts or for daily classroom use. Teresa Jennings is an active composer of elementary childrens literature.

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Johnson, P. (2009). Fundamentals of collection development and management. (2nd ed.). Chicago: American Library Association. Written by instructor and librarian Peggy Johnson, this text is very well-written and easy to read and understand. Originally written for librarians, this book is a valuable resource to the classroom teacher for answers to copyright questions regarding music and duplication of AV materials for archiving or storage. Passman, D. (2009). All you need to know about the music business. (7th ed.). New York: Free Press. This book was definitely the most entertaining of all the resources. I chose it mainly for the section on royalties and how they are figured. I learned a lot about streaming on demand and digital downloads along the way. Although the author is a lawyer, the book is written for the casual reader interested in getting started in the music business. The copyright information is excellent and very detailed and helpful. Stim, R. (2009). Music law. (6th ed.). Berkeley: NOLO. A guide for writing and publishing your own music, this book is basically a law how-to for forming a band and writing the music or using cover music to perform concerts. Mr. Stim is a lawyer who serves as an advisor to many well known popular musicians. The United States Copyright Office (2009). Reproduction of copyrighted works by educators and librarians (Circular 21). Retrieved from The Library of Congress website: http://www.copyright.gov This circular will be 3 hole punched and stored in my lesson plan folder at school. The most clear and concise of all of the copyright documents I have read and studied so far. This is an excellent resource for the music educator as well as the general classroom teacher. The document includes all of the fair use examples as well as suggestions for inclusion of items not falling under fair use. United States Congress. House. Committee on patents (1909). To amend and consolidate the acts respecting copyright, to accompany H.R. 28192. http://ipmall.info/hosted_resources/lipa/copyrights/The%20House%20Report %201%20on%20the%20Copyright%20Act%20of%201909.pdf The original house report 1 on the copyright act of 1909. What an amazing document to read. There was apparently quite the debate at this time period over the archaic nature of the copyright laws. Apparently Mr. Websters dictionary was the first work ever copyrighted in 1783. The need for a section on the mechanical reproduction of music came about with the invention of the player piano in the late 1880s. Congress did not like that the player piano company was ruling the entire industry and their solution was the Statutory Mechanical License.