The idea of transformation whether it be in the law, personally or of a mindset fascinates me. One of the many reasons I love studying, talking about and researching intellectual property law is because of its transformative nature and the way it has the ability to transform. Transformative not only in the way it helps to shape the legal canon but also in the way it changes people. Who doesn’t remember the first time they heard the funk beat in Stevie Wonder’s Superstition, in the case of copyright. Or, whose life has not been made better by a patent in medicine used to to revolutionize the way a disease is treated?
Even over the past twenty years, copyright law transformed and developed into a mainstream issue that touches more than just the shows watched on television or the songs heard on the radio. The best life example, outside of the law, I can think of deals with how friendships grow, change and develop over time. My friendships helped to transform me.
I am lucky that many of the friends I made by way of Zeta Tau Alpha sorority while at Birmingham-Southern College are still considered friends today. We may not talk or visit as often as either of us would like. However, I know if I needed any of those ladies, I could pick up the phone, and in an instant, they would be there. There is comfort in knowing that through all the transformations some things we have in common truly never change.
One such friend and I transformed from the girls we were once were, but still share a love of music. My love of music led me down the path of law and protecting, educating, assisting and advocating those rights for artists. While her love of music developed her into PhD now turned professor at our alma mater, Birmingham-Southern College. Being the good professor and desiring to merge new media into her classroom setting while at the same time honoring copyright law, Dr. Katy Elizabeth Leonard (as she is now known to her students) had some questions I thought would benefit readers of this blog.
The crux of Dr. Leonard’s questions boiled down to the concept of Fair Use in copyright law. I have written about Fair Use and provided some information on it in earlier posts that can be found here under Fair Use and Disney and Show Some Southern Hospitality, Mr. Faulkner
Fair use is the doctrine related to copyright law that serves as the flexible band-aid between the verbiage in the First Amendment and the absolute rights that are granted to creators of copyrighted works. It is the law’s way of relieving the tension created from those two parts that, on the face, seem to contradict each other. Because Dr. Leonard is in an academic setting, most of the uses she would incorporate in her classroom would fall under fair use.
Specifically §107 of the Copyright Act of 1976 states, “fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified … for purposes such as (1) criticism, (2) comment, (3) news reporting, (4) teaching (including multiple copies for classroom use), (5) scholarship or (6) research is not an infringement of copyright. Emphasis and numbers added by Ryanne. The statute goes on to mention that there would be four (4) factors a court should consider to decide whether a use is fair; thus, not copyright infringement. The four factors are:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Practically speaking, what does this mean? Fair use allows some types of usage of copyrighted works without fear of infringing on the copyrighted work. This means permission or payment to the copyright holder is not necessary to use the work. A word of warning should be offered here because fair use is a defense for copyright infringement. A person is facing a lawsuit claiming copyright infringement and your defense is that the usage fell under the broad and vaguely defined fair use concept.
With groundwork in place about the basic concept of fair use and agreeing that most of what Dr. Leonard would use in an academic setting would fall under fair use, below are a few of the questions she posed.
Dr. Leonard’s first question asked – Is there some sort of legal benchmark for how much of a song could be placed on a course website in order to quiz her students on meter and texture? She had been told that using ten (10) seconds or less is probably okay. When it comes to the idea of fair use in music usage, it is an urban myth that there is some set benchmark of how much is “too much” or “too little.” Since Dr. Leonard’s use would be in an academic setting, for classroom curriculum and as a teaching tool, then she could probably get away with using more of the song than the mere ten seconds. Of course, this answer is based upon assumptions and cautions.
I would caution that the course website be a secure location. Meaning, a student would have to be registered for the class, a password would be given for the student and the password the student used would only be effective to get access to the materials during the duration of the semester. I would also urge that whatever materials Dr. Leonard places on this secure service that she would have purchased those materials legally. Providing pirated materials and then arguing fair use would hold little weight. Finally, while there is no set benchmark, I would still encourage using as little as is necessary to teach the point/skill to the students. Where a copyright creator is really going to get upset is if a sale of a product is being usurped. Meaning, you could not copy an entire text-book, bound the pages together and then give it to student claiming fair use under the idea of teaching and/or scholarship. That points to factor four (4) of the analysis above questioning the “effect of the use on the potential market.”
Dr. Leonard’s second question asked – Is putting videos from YouTube on a class hosting service in order to quiz a student’s musical knowledge okay? The answer to this question is less cut and dry and depends on how the videos are placed on the class hosting service. Are the videos being saved from YouTube and then placed separate and apart from the class hosting service? Or, are merely links provided on the class hosting service and then sending the viewers to the YouTube pages?
If I was the professor and it was my class, the safest bet is to give links that then transport the students to YouTube to view the materials. With YouTube’s copyright policy, as was shared in my post Copyright Policy and YouTube, if the materials infringe on copyrighted work then YouTube (in theory) will eventually take the link down after their complaint/investigation process. By not embedding the link or saving the video onto the class site portal, it diminishes any legal burden on the professor and on the school.
Copyright is now a mainstream issue because of the ease of technology and the ease at which creative works can reach large levels of distribution. Education on the topic of copyright is important. If you are in the academic field, I would urge you to think about copyright law, how it affects your students and what type of training you can put in place for your organization to minimize the risk of unknowing infringement. Let’s bring more folks to the table about creative works, take steps to educate about this issue that touches us all and has transformed the workplace and the way education occurs.
What do you think? How has the transformation and ease of copyrighted material changed your work habits? Does copyright education take part in your workplace? Do you think it should? What steps has your organization put in place for copyright education? Take part in the Comments section below, and Stay Tuned In!
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