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Copyright: It's a Matter of Respect

Every day it seems that there is another headline news story about copyright—or rather, about the infringement of copyright. As I write this article, the Recording Industry Association of America (RIAA) is filing suits against hundreds of individuals seeking millions of dollars in fines and restitution for stealing copyrighted song files—intellectual property—through illegal downloading over the Internet. Record companies are reporting dramatic declines in sales of audio product. Music stores are closing or scaling back their selection of recorded material. The courts forced NAPSTER to shut down its Peer-to-Peer (P2P) file sharing last year, but 7.6 million home computers are now using its successor - KaZaA – to share files according to comScore Networks.

I talk to many groups of educators during the year and they seem as puzzled by copyright—what is allowed and what is illegal—as their students. Most young people, it seems, cannot understand what it is “wrong” with downloading “free stuff” over the Internet and most parents and educators have difficulty giving them an explanation. Many of us are left to wonder if technology has finally managed to usurp the rights and ability of the creative community to control the distribution of Intellectual property. In this article, I will attempt to illustrate how, through the passage of time, advancements in technology and court challenges have actually strengthened copyright protection to benefit society.

What is Copyright?

In 1788 the U.S. Constitution was ratified giving congress the power “to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” On May 31, 1790, George Washington signed the first U.S. national copyright law: “An act for the encouragement of learning.” The concepts of “exclusive” and “limited time” embedded in the constitution are central to our understanding of the law and they have been re-defined and expanded over time as new technologies developed and the U.S.A. joined other countries in encouraging and protecting creative works.

The father of copyright in the U.S. is acknowledged to be Noah Webster who crusaded to secure protection not only for his spelling books and dictionaries and also for all authors. It is worth noting that “music” was not specifically added to the copyright law until 1831. As we trace the history of music and copyright in our country, we will see that “limited time” protection has expanded from the original term of 14 years – with an extension of an additional 14 years – to the current 1998 law which grants protection for the “lifetime of the composer plus an additional 70 years.” Just a few months ago, the U.S. Supreme Court upheld the constitutionality of the 1998 copyright extension.

The other core concept of copyright—exclusive right to copy—has evolved over time to now be held as a “bundle of rights.” These exclusive rights granted to the creator or their agent(s) are:

• To reproduce the work in copies and recordings
• To prepare derivative works – arrangement of the work for different instrumental or vocal combinations. This right was added in 1870 and expanded in 1909.
• To distribute copies of the work by sale or transfer; rental, lease or lending.
• To public performances of the work – added by congress in 1897
• To public display of the work – think lyrics projected onto a karaoke machine. This was added to the copyright law in 1976.
• To public performance of the work via digital audio transmission.

Side-by-side with each of these exclusive rights, the copyright law makes provision for the public to access these works under the concept of “fair use.” The fair use exception is “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research…” I am sure that most of you had no idea of the fair use provision. However, before you start to think that—as educators—you can make unlimited photocopies of copyrighted works “for teaching purposes,” please consider the dividing line between “fair use” and copyright infringement: Plain and simple, if you are doing something to avoid purchase you are violating the law.

Fair use guidelines for educators, critics and performers allow:

• Emergency copying to replace a purchased copy for imminent performance. Replacement copies must be obtained.
• For academic purposes other than performance. Copied material cannot constitute a performable unit—e.g. a sonata movement—and is limited to 10% of the entire work.
• Editing or simplifying purchased printed copies. In doing so you cannot distort the fundamental character of the work. You can neither add nor translate lyrics without obtaining permission.
• Make a single copy of a recording of a student performance or make a single copy of a purchased recording for aural exercises.

In 1975, a subcommittee of Congress met to develop guidelines for multiple copying for classroom use. To meet the “minimum standards of educational fair use” a teacher must pass the test for “brevity, spontaneity and cumulative effect.” In other words, you cannot reuse copied materials year-after-year as a substitute for a standard textbook nor can you cause commercial harm to the copyrighted work by avoiding purchase.

I am not a lawyer nor am I an expert on Copyright Law and Intellectual Property. I urge you to consult a lawyer if you are in doubt over any possible copyright issue. Hopefully, you are inspired by this article and will try to expand your knowledge of the history and importance of copyright. If so, I provide a list of sources for further reading at the end of this article.

The Evolution of Copyright in America

In the 1890’s - one hundred years after the copyright law was first enacted – the purchase of published sheet music was practically the only way that people were exposed to music. “After the Ball,” by Charles Harris sold over 2 million copies when it was made popular at the Chicago World’s Fair. This was a colorful era when “Tin Pan Alley” flourished in New York and composers and publishers turned out music to meet the growing demand for music making in the home and in touring vaudeville shows.

The first disruptive technology that tested the copyright laws and caused a major revision was – surprise – the Player Piano. Specifically, the Aeolian Company aggressively purchased the exclusive rights to most of the popular pieces of the day for exclusive use with their player pianos. Congress was concerned that this constituted collusion and restraint of trade. Their solution was to create the “compulsory mechanical license.” This statute is still very much in effect today and stipulates: Once the composer grants permission to allow the first recording of their work anyone can obtain permission to record that work by securing a mechanical license and paying the statutory fees. Currently the fees are: 9.1 cents per songs lasting 5 minutes or less or 1.75 cents per minute or fraction thereof over 5 minutes. Of course, these fees are per unit record (or CD) made and distributed. The Harry Fox Agency www.harryfox.com is a one-stop source to secure a mechanical license since they work on behalf of most -—but not all — publishers.

What are Performance Rights?

Victor Herbert, John Philip Sousa, Irving Berlin and a group of publishers formed ASCAP (American Society of Composers, Authors and Publishers) in 1914. Herbert’s popular operetta “Sweethearts” was playing on Broadway and generating royalty payments for the composer. However, a few blocks away from the theatre, an orchestra at Shanley’s Restaurant in Times Square was playing Herbert’s music “for free” to add to the ambiance and entertainment of the diners. Herbert was upset of course. The case went to the Supreme Court where Justice Oliver Wendell Holmes found in favor of the composers saying. “If music did not pay it would be given up. If it pays, it pays out of the public’s pocket. Whether it pays or not, the purpose of employing it is profit, and that is enough.”

Those words, spoken in 1917 still ring true today. Certainly the eloquence of Justice Holmes is missing in today’s debate on the value of music. When I lecture on Copyright and Intellectual Property, I pose this question: “Why would you never consider stealing tangible property, yet… without thinking, you might be stealing intellectual property?”

To illustrate, consider the Girl Scouts selling cookies to benefit their organization. Would you ever think of stealing a box of “Thin Mints” from the local Girl Scout troop’s sales table? Of course not! However, if you illegally copy Irving Berlin’s “God Bless America” you are stealing money from the Scouts because Berlin donated all royalties —from printed music, performances, synchronization, etc.—to the Boy Scouts and Girl Scouts of America.

This begs an even larger question, “What are you actually getting when you purchase a printed copy of ‘God Bless America?’ Is it more than just black dots of ink on white paper?” To those who have felt the healing power of music as our nation seeks to recover from the events of September 11, the answer is obvious. Copyrighted works—the realization of an idea—are valuable and they deserve respect and proper payment for their use.

ASCAP and the other performance rights agencies, BMI and SESAC have championed the cause of the composer to be compensated for public performances of their works. The Copyright law of 1976 added 9 specific examples of performances that were “exempt” and therefore not copyright infringements. These include: face-to-face teaching activities and live performances without commercial advantage to anyone. Remember that when you purchase a printed copy of music you simply own the copy. Performance rights are administered separately and you may or may not have to secure a license and pay a fee. Consult either www.harryfox.com or www.mpa.org for additional information.

Another disruptive technology was the radio. While listeners were not required to directly pay to receive broadcast music, the music was not “free” because radio stations received advertising revenue to support their programming. A landmark court case against radio station WOR in New York allowed ASCAP to begin collecting licensing fees from stations that played their music. It is my guess that this legal precedent will eventually apply to music downloaded over the Internet. Advertising revenue will subsidize the Internet Service Provider (ISP) who will pay the proper licenses and allow consumers to download their favorite music “for free” or for a very modest cost.

It is beyond the scope of this article to cover copyright in depth as it pertains to recordings and the Internet and public display. However, I will try to address some Frequently Asked Questions (FAQ) about how to obtain a copyright, how much does it cost and how long does copyright protection last and an explanation of derivative works.

How to Obtain a Copyright

The current copyright law states that the creator automatically owns a copyright for every work as it is realized or completed. It is not necessary to register your work in order to obtain copyright protection—although this is recommended because an official government document adds validity when defending your claim to copyright. Note that you cannot copyright an idea or a concept—only the expression or realization of the idea can be copyrighted.

Simply adding Copyright © 2003 John Doe to the page of your completed work establishes your claim to copyright. Of course, you should take steps to register your work by contacting the U.S. Copyright Office in care of the Library of Congress www.loc.gov All forms can be obtained and downloaded from this site. There is currently a $30 fee to register a copyright. Note, that simply registering your work does not indemnify you against others who may claim infringement. The copyright office makes no attempt to verify the originality of your work. It merely serves as an official document verifying that you have registered your work. Should you wish to proceed with a claim of infringement, you must have registered your work within 3 months of publication or if unpublished, prior to any claimed infringement.

How Long Does a Copyright Last?

Currently, for works created by an individual after January 1, 1978, protection will last for the life of the composer—or in the case of multiple composers, the surviving composer’s life—plus 70 years. For works created between 1923 and 1977, a simple rule-of-thumb guide is that protection lasts 95 years from the year of the original copyright.

Earlier versions of the copyright law more narrowly defined “limited time” protection to periods as short as 14 years and a 14-year renewal. This meant that the works of some composers fell into the Public Domain (P.D.) during their lifetime. In order to maintain “reciprocal privileges” of copyright enforcement with other nations, the U.S. has gradually extended the length of protection. This was the main motivation for Congress to add 20 years of protection (from Life plus 50 years) in 1998 and the Supreme Court upheld this law earlier this year.

Some teachers and performers may have noticed that the works of certain Russian and Eastern Block composers are now covered by copyright protection. Prior to the U.S. signing the GATT (General Agreement on Tariffs and Trade) treaty in 1994, we did not recognize the works of composers whose country did not protect our copyrights. Effective January 1, 1996 many works previously considered P.D. had their copyright protection restored.

What are Derivative Works?

A derivative work is a work based on one or more preexisting works. For example, a copyright holder has the exclusive right to create authorize or license a “translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or other form may be recast, transformed or adapted.”

Teachers are most familiar with derivative works—arrangements or transcriptions—of source material that is the Public Domain. For example, and Easy Piano arrangement of Beethoven’s Fifth Symphony. In this case the source material is P.D. but the arrangement itself is protected by copyright.

Final Thoughts

As teachers, we serve as role models—both positive and negative—to our students. Our actions help to shape the minds and habits of our students. When you are in doubt about whether your actions infringe a copyright… ask for permission. If you are going to require permission to legally photocopy music or secure a performance license… communicate your request in advance. Be proactive in educating your community about the benefits of copyright and stay informed to changes in the law.

I urge all readers to check out the resources available from the Music Publishers Association www.mpa.org. This is a wonderful one-stop location for forms to request permission to arrange music, locate the publisher of a work, etc. There is also a very valuable series of FAQ that address most areas of concern to performers and educators.

Copyright is a fascinating subject and one that I hope you—or your students—will take time to explore. Type “Copyright” into your favorite Internet search-engine (e.g. www.google.com) and you will be exposed to a wide range of articles and discussion of the subject. In researching this article I relied upon the following:

Glossary

“The Illustrated Story of Copyright” – Edward Samuels – Thomas Dunne Books – ISBN 0-312-28901-4

“Copyright: The Complete Guide for Music Educators 2nd Edition” – Jay Althouse - Distrubuted Exclusively by Alfred Publishing Co., Inc. – ISBN 0-939139-07-3

“Music Copyright Basics” – Joel Leach – Alfred Publishing Co., Inc. – ISBN 0-7390-3093-0

“A Songwriter’s Guide to Music Publishing Revised Edition” – Randy Poe – Writer’s Digest Books – ISBN 0-89879-754-3

“A Music Business Primer” – Diane Rapaport – Prentice hall – ISBN 0-13-034077-4


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Published: 09/14/2006

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