RE: Digitized Music in online courses

[Eric J Harbeson <eric.harbeson@xxxxxxxxxxxx>]

All,

As I understand it, ASCAP, BMI, SESAC and their ilk are authorized by their
members only to collect royalties for the performance right in Sec. 106(4).
They do not, as I understand it, collect rights under 106(6) or represent
performing artists-just the rightsholders (all of them) for the underlying
musical works.  If the rightsholders for the pieces or their assignees are
members of the performance-rights organization, then they're authorized to
license you to perform the works; if not, then they are not.

I've never actually seen one of the blanket licenses, so please someone
correct me if I'm wrong, but I've never heard of such licenses containing
clauses taking away permissions-as I understand it they only grant affirmative
permissions to perform works under certain conditions.  In other words, I've
never heard of blanket licenses saying something to the effect of, "you agree
not to perform any of the works in our catalogue under terms other than those
specified in this contract", or "you agree that you will never perform works
we represent in classrooms," etc.  The licenses are designed to make it easier
for the PRO's to license works from their tens or hundreds of thousands of
artists without having to negotiate for each and every instance.  (This is in
direct contrast to the licenses for, say, iTunes, which uses click-through
licenses for each instance which specifically state that you may not rent,
loan, lease, etc., their recordings, specifically contradicting Secs. 107, 109
and others.  As I understand, it is this latter language where a contract
would (or, depending on your view, might) supersede the limitations in the
Title 17.)

With that in mind, from what I gather from the original question, you may not
even need to reach a fair use argument here.  The professor wants to use the
materials in his online class.  There wasn't much in the way of detail (which
would be important), but isn't this precisely the sort of thing that 110(2) is
designed to get at?

Always grateful for corrections to any gaps in my knowledge!

Cheers,
Eric Harbeson

-----Original Message-----
From: Colson, Jeannie [mailto:jcolson@xxxxxxx]
Sent: Wednesday, January 25, 2012 3:16 PM
To: Davis, Rick K.; digital-copyright@xxxxxxxxxxxxxx
Subject: RE: Digitized Music in online courses

You're right. I just closely read all 3 licenses and they are about the
songwriters/composers/publishers, not about the recordings.

Does that mean there are 3 levels of permissions (or fair use analysis) that
would be required for recorded music - the composition (notation and words,
which could be 2 or more people), the instrumentalists and/or vocalists (are
their rights together or separate?) and the actual recording (recording
company, I presume)? Oh. And all 3 specifically are NOT about dramatic
renditions (though BMI also defines "musical attractions" as including opera,
which strikes me as a dramatic performance....). So, there's also dramatic
performance rights? From whom?

I'm SOOO glad you told me to not trust the reps. They may be right that we're
probably covered on one level (the composers' rights MAY be covered by one or
more of the companies. But  that doesn't answer all questions. Sheeesh!

~Jeannie



-----Original Message-----
From: Davis, Rick K. [mailto:rkDavis@xxxxxxxxxx]
Sent: Wednesday, January 25, 2012 10:26 AM
To: digital-copyright@xxxxxxxxxxxxxx
Subject: RE: Digitized Music in online courses

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