RE: Digitized Music in online courses

[Gary Hunter <Gary.Hunter@xxxxxxxxxxxx>]

Stephen,

As you note, there is an overlap of contract law and copyright law in some
higher education situations, such as when music licenses are obtained.  In
these situations, the contracting parties are agreeing to be bound by contract
law principles.   A valid contract/license is basically a set of legally
enforceable promises.  The language in some license agreements requires the
licensee to give up their rights under copyright law, such as the rights
provided by Fair Use or the TEACH Act.  If the license language clearly
prohibits activities permissible under copyright law, I think the courts would
give great weight to this contract language (i.e. the promises made by the
contracting parties).  Otherwise, the contract would be meaningless.   For
licenses that are silent or ambiguous on what activities are prohibited, there
could be a different outcome.  This is why reading the terms of a license
agreement is so important.   When the license expressly prohibits certain
activities, I do not believe that copyright law authorizes a party to breach a
legally enforceable license.  Generally speaking, copyright law will not  be
accepted as a valid defense to a breach of the license claim when the license
prohibits that specific activity.  While faculty members could use copyrighted
materials under Fair Use or the TEACH Act, they contract these rights away
when they (or their institution's representative) sign the license agreement.

I'm not aware of any case law that addresses this overlap.  The UCLA case is
distinguishable because that was a copyright infringement case, not a breach
of contract case.  The specific facts in that case; lack of standing,
sovereign immunity, and using the license language + fair use as a defense to
a claim of copyright infringement are different.  If someone on the list serve
can point to a case that actually states copyright law is a valid defense to a
breach of contract claim, please share it.  Otherwise, I will presume the
general rule of law is that copyright law does not trump the promises made in
contracts such as subscriptions, licenses, terms of use agreements, etc.
Until a court's holding states that it does, I'll continue to take the risk
averse pathway and follow the terms of the license.   This issue arises
frequently when faculty members want to print hard copies of a chapter
contained in an e-Textbook.  If the e-Textbook subscription agreement
prohibits this specific activity, even though it would be considered a Fair
Use under section 7 of the Copyright Act, I advise them not to make the copies
unless written permission is obtained from the publisher.

I would be interested in hearing other opinions as well.

Best regards,

Gary

Gary Hunter, JD
System Director for Intellectual Property
Minnesota State Colleges and Universities
30 7th Street E., Suite 350
St. Paul, MN 55101-7804
gary.hunter@xxxxxxxxxxxx
Ph: (651)201-1659
Fax: (651)632-5008




-----Original Message-----
From: Stephen Marvin [mailto:SMarvin@xxxxxxxxx]
Sent: Tuesday, January 24, 2012 10:37 AM
To: digital-copyright@xxxxxxxxxxxxxx;
digital-copyright-digest-help@xxxxxxxxxxxxxx; Gary Hunter
Subject: Digitized Music in online courses

Related to using musical works and the sound recordings for definite
instructional purposes, Fair Use should be applied with your consideration.
This is a consistent topic regarding the conflict between licenses and Fair
Use and I believe Fair Use should trump licenses, particularly for course
instruction.  Be interested in learning other opinions.

Thanks,

Stephen Marvin, MLS
FH Green Library
West Chester University
25 W. Rosedale Ave., Suite 205
West Chester, PA  19383
610-436-1068
Faculty Mentoring Coordinator
Campus Copyright Coordinator
Dictionary of Scientific Principles

From: "Davis, Rick K." <rkDavis@xxxxxxxxxx>
Subject: RE: music and licenses
Message-ID: <2CC3A0D1FC8F804EA41838CB0E7F31BF222D00A8@xxxxxxxxxxxxxxxxxxx>

BMI, ASCAP, and SESAC blanket licenses cover the musical works (i.e.
compositions), but they don't typically cover sound recordings. If you are
digitally transmitting copyrighted sound recordings, I don't think these
blanket licenses will help. Though you still have fair use and TEACH as
possible exemptions to apply...

Rick Davis
Cataloging Librarian/
Copyright Liaison
Albert S. Cook Library
Towson University
8000 York Road
Towson, MD 21252-0001
p: 410-704-2686
f: 410-704-4755

-----Original Message-----
From: Colson, Jeannie [mailto:jcolson@xxxxxxx]
Sent: Monday, January 23, 2012 11:39 AM
To: digital-copyright@xxxxxxxxxxxxxx
Subject: music and licenses

Hello all.

A Contemporary American Music instructor asked me about using music files
within his online course.

We have licenses with BMI, ASCAP, and SESAC.

So....shouldn't we be covered for the use of the music files? If not, what
should I be considering that I'm not thinking of right now?

~~~~~~~~~~~~~~~~~~~~

Jeannie Colson

Campus Copyright Advisor/Dist. Ed. Librarian

Lee College

Baytown, TX 77522

jcolson@xxxxxxx

281-425-6497

------------------------------

Date: Mon, 23 Jan 2012 18:37:03 +0000
To: "'digital-copyright@xxxxxxxxxxxxxx'"
  <digital-copyright@xxxxxxxxxxxxxx>
From: Kathleen List <klist@xxxxxxxxxxxx>
Subject: RE: music and licenses
Message-ID: <3285925033D6044C85C525EF26F94C886F5FB290@xxxxxxxxxxxxxxxxx>

Yes, your licenses may be for public performances, for example.

Kathleen List
Director of Library Services
Ringling College of Art and Design
2700 N. Tamiami Trail
Sarasota, FL 34234-5895

941.359.7582 Office
941.359.7632 Fax
klist@xxxxxxxxxxxx
www.lib.ringling.edu

-----Original Message-----
From: Davis, Rick K. [mailto:rkDavis@xxxxxxxxxx]
Sent: Monday, January 23, 2012 1:02 PM
To: digital-copyright@xxxxxxxxxxxxxx
Subject: RE: music and licenses

BMI, ASCAP, and SESAC blanket licenses cover the musical works (i.e.
compositions), but they don't typically cover sound recordings. If you are
digitally transmitting copyrighted sound recordings, I don't think these
blanket licenses will help. Though you still have fair use and TEACH as
possible exemptions to apply...

Rick Davis
Cataloging Librarian/
Copyright Liaison
Albert S. Cook Library
Towson University
8000 York Road
Towson, MD 21252-0001
p: 410-704-2686
f: 410-704-4755

-----Original Message-----
From: Colson, Jeannie [mailto:jcolson@xxxxxxx]
Sent: Monday, January 23, 2012 11:39 AM
To: digital-copyright@xxxxxxxxxxxxxx
Subject: music and licenses

Hello all.

A Contemporary American Music instructor asked me about using music files
within his online course.

We have licenses with BMI, ASCAP, and SESAC.

So....shouldn't we be covered for the use of the music files? If not, what
should I be considering that I'm not thinking of right now?

~~~~~~~~~~~~~~~~~~~~

Jeannie Colson

Campus Copyright Advisor/Dist. Ed. Librarian

Lee College

Baytown, TX 77522

jcolson@xxxxxxx

281-425-6497

------------------------------

Date: Mon, 23 Jan 2012 14:17:48 -0500
To: Kathleen List <klist@xxxxxxxxxxxx>
From: John Mitchell <john@xxxxxxxxxxxxxxxxxx>
Cc: "digital-copyright@xxxxxxxxxxxxxx"
  <digital-copyright@xxxxxxxxxxxxxx>
Subject: Re: music and licenses
Message-id: <171D4E9A-5EB3-475C-84CF-4AA56FFA60EA@xxxxxxxxxxxxxxxxxx>

Right. There is no exclusive right "to use music files" under the Copyright
Act, so anyone is free to "use music files". To assess what is or is not
covered, consider the use of "the copyrighted work" instead, whether the
musical composition or the sound recording, looking at reproduction,
distribution, derivative works and public performance.

John

On Jan 23, 2012, at 1:37 PM, Kathleen List <klist@xxxxxxxxxxxx> wrote:

> Yes, your licenses may be for public performances, for example.
>
> Kathleen List
> Director of Library Services
> Ringling College of Art and Design
> 2700 N. Tamiami Trail
> Sarasota, FL 34234-5895
>
> 941.359.7582 Office
> 941.359.7632 Fax
> klist@xxxxxxxxxxxx
> www.lib.ringling.edu
>
> -----Original Message-----
> From: Davis, Rick K. [mailto:rkDavis@xxxxxxxxxx]
> Sent: Monday, January 23, 2012 1:02 PM
> To: digital-copyright@xxxxxxxxxxxxxx
> Subject: RE: music and licenses
>
> BMI, ASCAP, and SESAC blanket licenses cover the musical works (i.e.
> compositions), but they don't typically cover sound recordings. If you
> are digitally transmitting copyrighted sound recordings, I don't think
> these blanket licenses will help. Though you still have fair use and
> TEACH as possible exemptions to apply...
>
> Rick Davis
> Cataloging Librarian/
> Copyright Liaison
> Albert S. Cook Library
> Towson University
> 8000 York Road
> Towson, MD 21252-0001
> p: 410-704-2686
> f: 410-704-4755
>
>
>
> -----Original Message-----
> From: Colson, Jeannie [mailto:jcolson@xxxxxxx]
> Sent: Monday, January 23, 2012 11:39 AM
> To: digital-copyright@xxxxxxxxxxxxxx
> Subject: music and licenses
>
> Hello all.
>
>
>
> A Contemporary American Music instructor asked me about using music
> files within his online course.
>
>
>
> We have licenses with BMI, ASCAP, and SESAC.
>
>
>
> So....shouldn't we be covered for the use of the music files? If not,
> what should I be considering that I'm not thinking of right now?
>
>
>
> ~~~~~~~~~~~~~~~~~~~~
>
> Jeannie Colson
>
> Campus Copyright Advisor/Dist. Ed. Librarian
>
> Lee College
>
> Baytown, TX 77522
>
> jcolson@xxxxxxx
>
> 281-425-6497
>

------------------------------

Date: Mon, 23 Jan 2012 19:43:07 +0000
To: "digital-copyright@xxxxxxxxxxxxxx"
  <digital-copyright@xxxxxxxxxxxxxx>
From: "Davis, Rick K." <rkDavis@xxxxxxxxxx>
Subject: RE: music and licenses
Message-ID: <2CC3A0D1FC8F804EA41838CB0E7F31BF222D017C@xxxxxxxxxxxxxxxxxxx>

I should probably elaborate on my previous answer: the blanket licenses will
help, but only insofar as the musical compositions are concerned. My campus'
blanket licenses with BMI et al. cover things like concerts where public
performances of copyrighted musical works are given, or music played by our
radio station, the PA system in the Union, and even our telephone on-hold
music. Even though these last three do involve sound recordings as well as
musical works, there's no issue with these particular uses of sound
recordings, because copyright only grants an exclusive performance right in
sound recordings that are *transmitted digitally.* There's no exclusive right
in the public performance of a sound recording when the performance is given
live or via analog means.

Including recordings in an online course, OTOH, does require digital
transmission, so you have to consider BOTH the musical work copyright and the
sound recording copyright. The former is usually owned by a music publishing
company, with rights administered by performing rights organizations like BMI,
ASCAP, and SESAC; the latter copyright in the recording is often owned by the
record company that produced the recording as a work for hire.

Rick

-----Original Message-----
From: Kathleen List [mailto:klist@xxxxxxxxxxxx]
Sent: Monday, January 23, 2012 1:37 PM
To: 'digital-copyright@xxxxxxxxxxxxxx'
Subject: RE: music and licenses

Yes, your licenses may be for public performances, for example.

Kathleen List
Director of Library Services
Ringling College of Art and Design
2700 N. Tamiami Trail
Sarasota, FL 34234-5895

941.359.7582 Office
941.359.7632 Fax
klist@xxxxxxxxxxxx
www.lib.ringling.edu

-----Original Message-----
From: Davis, Rick K. [mailto:rkDavis@xxxxxxxxxx]
Sent: Monday, January 23, 2012 1:02 PM
To: digital-copyright@xxxxxxxxxxxxxx
Subject: RE: music and licenses

BMI, ASCAP, and SESAC blanket licenses cover the musical works (i.e.
compositions), but they don't typically cover sound recordings. If you are
digitally transmitting copyrighted sound recordings, I don't think these
blanket licenses will help. Though you still have fair use and TEACH as
possible exemptions to apply...

Rick Davis
Cataloging Librarian/
Copyright Liaison
Albert S. Cook Library
Towson University
8000 York Road
Towson, MD 21252-0001
p: 410-704-2686
f: 410-704-4755

-----Original Message-----
From: Colson, Jeannie [mailto:jcolson@xxxxxxx]
Sent: Monday, January 23, 2012 11:39 AM
To: digital-copyright@xxxxxxxxxxxxxx
Subject: music and licenses

Hello all.

A Contemporary American Music instructor asked me about using music files
within his online course.

We have licenses with BMI, ASCAP, and SESAC.

So....shouldn't we be covered for the use of the music files? If not, what
should I be considering that I'm not thinking of right now?

~~~~~~~~~~~~~~~~~~~~

Jeannie Colson

Campus Copyright Advisor/Dist. Ed. Librarian

Lee College

Baytown, TX 77522

jcolson@xxxxxxx

281-425-6497

------------------------------

End of digital-copyright Digest
***********************************