RE: Digitized Music in online courses

["Davis, Rick K." <rkDavis@xxxxxxxxxx>]

Of course, it's hard to say without seeing your actual blanket licenses, but
I'm still *highly* skeptical that they apply to the copyright in the sound
recordings. They may refer to sound recordings, but most likely only insofar
as those sound recordings embody copyrighted musical compositions. BMI, ASCAP,
and SESAC do not administer rights in sound recordings; they only administer
rights in musical works or composition. So despite what their reps say, they
aren't authorized to give you permission vis-`-vis the sound recordings.

Rick

-----Original Message-----
From: Colson, Jeannie [mailto:jcolson@xxxxxxx]
Sent: Tuesday, January 24, 2012 5:30 PM
To: digital-copyright@xxxxxxxxxxxxxx
Subject: RE: Digitized Music in online courses

I too appreciate all the discussion. Thanks for your input. Let me share
some things I've learned since posing my question to the list:

The licenses do specifically state that they include playing recordings,
and specifically speak of web as well radio, phone hold, student
activities, etc.

I asked representatives from 2 of the 3 the same question I posed to the
list and both said "you're covered."

As to the license vs. fair use question, all teaching I've received on
the topic says that licenses trump fair use.

Anything more I should be thinking of folks?

~Jeannie


-----Original Message-----
From: Ingrassia, Barbara [mailto:Barbara.Ingrassia@xxxxxxxxxxxx]
Sent: Tuesday, January 24, 2012 3:29 PM
To: 'Gary Hunter'; Stephen Marvin; digital-copyright@xxxxxxxxxxxxxx;
digital-copyright-digest-help@xxxxxxxxxxxxxx
Subject: RE: Digitized Music in online courses

THANK YOU ALL---for this ***very helpful*** discussion!!




-----Original Message-----
From: Gary Hunter [mailto:Gary.Hunter@xxxxxxxxxxxx]
Sent: Tuesday, January 24, 2012 3:54 PM
To: Stephen Marvin; digital-copyright@xxxxxxxxxxxxxx;
digital-copyright-digest-help@xxxxxxxxxxxxxx
Subject: RE: Digitized Music in online courses

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
***********************************