Copyright and Music

MUCT 602

Week ofSeptember 8, 2008

Copyright and Music: General History

British precursors to U.S. law: Stationers’ Guild (1557)The term “copyright” has its roots in an act by Queen Anne who, in 1557, gave the exclusive rights of printing and publishing books to the Stationer’s Guild. This act followed the introduction of movable type and widespread printing. A printer would apply for a license to print a work, and if granted, this license became property that could be passed on. The primary goal here seems to be to have greater control over the press, rather than to protect the rights of individual creators.

Copyright and Music: General History

British precursor to U.S. law: Statute of Anne (1710)In 1710, the recognition that the artists and authors should be the beneficiary of the sales of his or her own works led to the Statute of Anne in England, which gave the creator the exclusive right of reproduction for the first 28 years (14 initially, renewable for another 14) of a work’s creation, after which the work passed into the public domain.

Copyright and Music: General History

U.S. Copyright Law: Major Highlights• 1790: First Statute

Based upon the Statute of Anne, it granted protection for 14 years, renewable for another 14. This was the first major statute.

• 1831: First major revision; Music addedInitial protection was extended to 28 years, renewable for another 14 in an attempt to make U.S. copyright more like European laws. Musical works were first granted copyright protection.

• 1909: Copyright ActProtection was expanded yet again: 28 initial years, renewable for an additional 28. Categories were expanded to include “all works of authorship.”

Copyright and Music: General History

• 1971: The Sound Recordings ActUp to this point, sound recordings were not protected under federal copyright law but rather only by state law. This law, enacted on February 15, 1972, provided non-retroactive federal protection for all sound recordings “fixed” on or after that date.

• 1976: Copyright ActProtection was extended to life of author plus 50 years or 75 years after date of publication/100 years after creation for corporate, pseudonymous, anonymous works. For the first time, fair use was clearly outlined, and unpublished works were protected. It was also put into law that any state law that had protected sound recordings prior to the 1971 act would not be annulled until 2047, thereby eliminating almost completely a public domain for sound recordings.

Copyright and Music: General History

• 1998: Sonny Bono Copyright Term Extension ActProtection was again extended, this time to the life of the author plus 70 years or 95 years after the date of publication. This extension applied to works already protected under copyright at that time.

• 1998: Digital Millennium Copyright ActThis act specifically addressed the use of electronic data. The DMCA severely limited the creation of electronic data derived from analog sources, which meant that for online courses, in particular, information could not be shared in the same ways that it could for in-person classes. For instance, under this act, it would be prohibited to distribute scanned articles or digitized audio to online classes.

Copyright and Music: General History

• 2002: TEACH ActThe “Technology Education and Copyright Harmonization Act” (TEACH) allows for the wider distribution of copyrighted materials for distance education, assuming that certain efforts are made to restrict access to members of a particular course. It functions like a “fair use” clause to the DMCA by allowing electronic materials to be used in distance learning. Under this act, it became permissible to distribute electronic materials for educational purposes to a strictly defined audience, if efforts were made to keep that material from being distributed further. Hence, under the TEACH act, it is permissible to distribute reasonable amounts of scanned materials or to stream (not allowing for download) audio content to the members of a particular course.

Copyright and Music: Basic Concepts

Copyright: a set of rights granted to the copyright owner as enumerated in Title 17, U.S.C., Section 106.

Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and authorize any of the following:

Copyright and Music: Copyright Holders’ Rights

(1) to reproduce the copyrighted work in copies or phonorecords;(2) to prepare derivative works based upon the copyrighted work;(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

Copyright and Music: Copyright Holders’ Rights

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.

Copyright and Music: Terminology

Title 17, U.S.C., Section 101, defines a number of terms pertaining to copyright:

"Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

The term "copies" includes the material object, other than a phonorecord, in which the work is first fixed.

Copyright and Music: Terminology

Phonorecords: material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "phonorecords" includes the material object in which the sounds are first fixed.

Copyright and Music: Fair Use

There are four criteria to be considered in determining whether a use of copyrighted material is “fair:” the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.

Copyright and Music: Fair Use

Consider the same rules of fair use in relation to unpublished works.

Copyright and Music: Public Domain

The Public Domain includes material distributed freely by creators with no restrictions on use and material for which previous copyright or patent has expired or was not renewed. Certain government publications and collections of data or statistics are also in the Public Domain.

Works under copyright fall into the Public Domain depending upon the circumstances of their creation and first publication.

Copyright and Music: Copyright vs. Licensing

Copyright falls under Title 17; a license agreement is a contract. You agree to abide by the terms of the license.

Licensing can govern specific use of materials, such as distribution for electronic resources, re-use of a recording in a film, or playing music on the radio or in a public place.

Licensing is the mechanism through which permission beyond fair use is granted.

Copyright and Licensing

Creative Commons

A type of licensing that grants “some rights reserved” on a work.

These are free and the creator decides how their work can be used by other people.

Copyright and Licensing

Creative Commons

When registering for a cc license there you get three differently formatted licenses.

Commons Deeds = human-readable

Legal Code = lawyer-readable

Metadata = computer-readable

Copyright and Licensing

What are the advantages of creative commons?If you were the creator of a work would you ever want people to use your work in ways other than your original intentions?Would you gain anything from letting other people use your work?

Copyright and Music: Copyright of Work vs. Copyright of Edition

Copyright of works and copyright of recordings of those works are separate entities. More specifically, a work may be in the public domain - such as a Bach cantata would be - but a recording of that work is not necessarily in the public domain.

The same rule applies for original works and modern editions.

Copyright and Music: Sound Recordings

Until 1972, sound recordings were not covered by federal copyright. Up to that point, they were covered by state laws which tended to be more restrictive.

There is usually more than one copyright owner for sound recordings: performers, lyricists, composers, etc.

Copyright and Music:Enforcement

There is no governing body who oversees copyright violation. It is up to the copyright holder to discover and protest copyright violation.

Copyright and Music:Further Reference

Music Library Association Copyright Clearinghousehttp://www.musiclibraryassoc.org/copyright/University of Texas “Crash Course in Copyright”http://www.utsystem.edu/ogc/intellectualproperty/cprtindx.htmU.S. Copyright Office’s “How To Investigate the Copyright Status of a Work”http://www.copyright.gov/circs/circ22.html#before2