The Center for Internet and Society presents

Judith Finell
Invasion of the Tune Snatchers – Does Copyright Law Inhibit or Enhance Musical Creativity Today?

Thursday, October 21, 2010
Room 280A, Stanford Law School
12:45pm-2:00pm
Lunch will be served.
http://cyberlaw.stanford.edu/node/6538

Music technology has radically changed the way in which music is composed, produced, performed, and obtained. Many artists openly utilize the works of others, often altering the core sonic characteristics of a sampled fragment. These developments pose new challenges to doctrines such as fair use, scenes a faire, and infringement criteria, such as access, transformative use, and prior art. Musicologist and expert witness Judith Finell will discuss these issues, and present musical examples from recent copyright cases.

Judith Finell is a musicologist who specializes in issues involving music as intellectual property. Her arena is the intersection of music, law, and technology. She formed her consulting firm Judith Finell Musicservices Inc. in New York over 20 years ago, to serve copyright and entertainment attorneys, and the music, entertainment, media, technology, and advertising industries. She has testified as an expert witness in many leading copyright cases throughout the country, and is a frequent guest speaker before attorney groups, law schools, and intellectual property organizations.

Her paper on this topic can be found at: http://www.law.stanford.edu/calendar/details/4548/CIS%20Speaker%20Series%20-%20Judith%20Finell%20/#related_media

Fair Use, Free Speech and Social Value

Anthony Falzone, Esq.

– Executive Director, Fair Use Project, Lecturer in Law, Stanford Law School

Fair use has been enshrined as a First Amendment
safeguard. But is it doing the job? A look back at recent fair use decisions
suggests we might need to recalibrate the four-factor analysis to address more
explicitly the social functions of copyright and fair use.

Boston Bar Association, CLE – Recent Trends in Copyright and Trademark Fair Use – How Fair is Fair Enough?
https://www.bostonbar.org/ebusiness/Meetings/EventDetail.aspx?ID=5014

Read the First Amendment argument advanced in Salinger case in a brief filed today by the Fair Use Project, Georgetown Law Center and the Samuelson clinic.  It urges the Second Circuit to adopt a more stringent test for
issuing preliminary injunctions against books and other expressive
works, and to reject the narrow interpretation of the fair use doctrine
applied by the District Court. See Anthony Falzone’s blog post and brief at http://cyberlaw.stanford.edu/node/6230

The Fairly Useful blog has a post by Matthew Sag on Stanford Law Professor Paul Goldstein’s keynote at Columbia Law School’s symposium on developments in fair use, Fair Use: “Incredibly Shrinking” or Extraordinarily Expanding?

TO: Members of the Faculty, Hoover Institution Fellows, Senior Fellows, Department Administrators, Academic Staff (teaching and research) and Library Directors.
FROM: John Etchemendy, Provost
DATE: March 11, 2002
SUBJECT: Copyright Reminder

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The attached informational sheets are intended to update and remind the University community of the applicability of copyright law at an academic institution like Stanford. The attached sheets cover:

• BASIC COPYRIGHT PRINCIPLES
• THE FAIR USE DOCTRINE
• LIBRARY COPYRIGHT CONSIDERATIONS
• FACE-TO-FACE TEACHING ACTIVITIES
• OBTAINING PERMISSION TO USE COPYRIGHTED MATERIAL
• INTERNET AND ELECTRONIC MEDIUM COPYRIGHT CONCERNS
• THE DIGITAL MILLENNIUM COPYRIGHT ACT
• RESOURCES ON COPYRIGHT AND FAIR USE

If these informational sheets and the listed resources do not address your specific copyright concerns, please feel free to contact the Fair Use Panel at 723-5553 for assistance.

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Basic Copyright Principles

The Law. Congress enacted the federal Copyright Act to protect works of authorship. The Act gives the owner of a copyright the exclusive right to do and authorize others to do certain things in regard to a copyrighted work, including: make copies, distribute the work, display or perform the work publicly, and create derivative works.

Original Scope of Copyright. The Act applies to nearly all forms of captured content, including traditional works such as books, photographs, architectural drawings, music, drama and sculpture.

Expanded Scope of Copyright. The copyright laws have adapted to advancing technology by expanding the scope of protected works to include such things as video, motion pictures, electronic media, software, multimedia works and databases.

Test to Determine Copyright. A copyright will attach to an original work that is “fixed in any tangible medium of expression” (i.e., a medium that is captured in an accessible form of content).

No Mark or Registration Necessary. Since 1989, works are protected by copyright regardless of whether a copyright notice is attached and regardless of whether the copyright is registered.

Public Domain Works. Not all works carry copyrights; those in the public domain may be freely used. Any work published before 1923 is in the public domain. Works published from 1923 through 1978 are protected for 95 years from the publication date, if proper copyright formalities were followed. Since 1978, works generally have copyright protection for the life of the author plus 70 years.

If No Exception, Seek Permission. In academia, the three major exceptions to the copyright owner’s right to control the reproduction and use of works of authorship are: the fair use exception, the library exception, and the face-to-face teaching exception. These three exceptions are described below. Unless an exception applies, you must obtain permission to reproduce copyrighted work in any medium for any purpose.

Penalties. The penalties for copyright infringement are harsh. A court may award up to $150,000 for each separate willful infringement.

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The Fair Use Doctrine

Fair Use Defined. The Fair Use Doctrine provides for limited use of copyrighted materials for educational and research purposes without permission from the owners. It is not a blanket exemption. Instead, each proposed use must be analyzed under a four-part test.

Fair Use Applied. Unfortunately, the four-part test to determine fair use is necessarily vague and fact-dependent. In some instances, two reasonable people could apply the four factors to the same facts and reach opposite conclusions. If the weighing and balancing analysis below does not provide an answer, please refer to the Copyright and Fair Use Resources section below.

Fair Use Four Factor Test.

1. What is the character of the use? Educational, nonprofit and personal use is favored for fair use, while commercial use is disfavored. However, the fact that a use is educational or nonprofit in nature does not in and of itself mean the use is necessarily fair. More important than the educational or nonprofit nature of the use is whether the use is “transformative” in nature. A use is transformative if it builds upon, criticizes, comments on, parodies or otherwise adds something new to the original work. Put another way, the question is whether the new use, in the words of the Supreme Court, merely “supercedes the objects of the original, or instead adds something new, with a further purpose or different character.”
2. What is the nature of the work to be used? Use of a work that is factual in nature weighs toward a finding of fair use. Use of imaginative works is more likely to require permission.What is the amount and substantiality of the portion to be used? Using only a small portion of a copyrighted material tips towards fair use, while using large portions indicates a need for permission. Be careful with this factor, however; a court recently held that copying only 5% of a book into a coursepack was not fair use.
3. Will the use negatively affect the value of the copyrighted material? Where a work is available for purchase or license from the copyright owner, copying all or a significant portion of the work (in lieu of purchasing or licensing a sufficient number of “authorized” copies) would likely be unfair. If only a small portion of a work is to be copied, and one would likely forego using the portion if permission were required, then the balance tips towards fair use.
4. Good Faith Fair Use Defense. Even if a copyright infringement occurs, a court may refuse to award damages if the infringer reasonablybelieved that the use was fair.

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Library Copyright Considerations

Library Exemption for Reproduction of Copyrighted Works. The Copyright Act establishes certain exemptions for libraries and archives to reproduce copyrighted works.

Filing a Course Reserve. Some libraries at Stanford will not accept multiple photocopies of copyrighted materials needed for course reserves without first having permission from the copyright holder. Other libraries on campus will accept a limited number of photocopies for course reserves. Consult individual libraries for their policies. The Green Library policy on course reserve is located at http://www-sul.Stanford.edu/services.html.

Allow Several Months for Course Reserve Permission. Note that filling course reserve requirements may take two to three months before the quarter begins if the library does not already have a copy of the publication and copyright permission is needed.

Filing an E-Reserve. Some libraries at Stanford allow electronic files to be placed on reserve under limited circumstances in accordance with copyright principles. These e-reserves are access controlled to course participants only. For information about filing an e-reserve, please contact Brigid Welch, Head of Access Services (5-1277 or bwelch@stanford.edu).

Contact. For further questions about the library exemption, library policy and course reserves, please contact Brigid Welch, Head of Access Services (5-1277 or bwelch@stanford.edu) or Catherine Tierney, Associate University Librarian (3-2015 or ctierney@stanford.edu).

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Face-To-Face Teaching Activities

Performance or Display of Copyrighted Materials During Face-to-Face Teaching. In addition to the fair use exemption and library exemption, the Copyright Act does provide an exemption to perform or display copyrighted materials during face-to-face teaching activities. Such use does not require the author’s permission. Note, however, that this exemption does not permit copying or distributing a work—only displaying or performing it.

Distance Learning and the TEACH Act. In June 2001, the Senate passed the Technology, Education and Copyright Harmonization Act (TEACH), which provides that educators may put limited amounts of copyrighted material onto computer systems to be accessed by students outside of the classroom as part of distance-learning classroom transmission supervised or directed by an instructor. Note that TEACH is currently pending before the House and is not the law. Until this bill becomes law, professors and teaching assistants should continue to exercise caution in posting copyrighted material onto the internet for use outside of the classroom. (The face-to-face teaching exemption does permit the display of internet material inside the classroom.) Also note that TEACH contains many conditions and exceptions, including an exception for textbooks, coursepacks or other works that are typically purchased or acquired by students. Therefore, if TEACH does become law, instructors should seek further guidance before using any copyrighted material in reliance on TEACH.

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Obtaining Permission to Use Copyrighted Material

In General. If an exception (such as fair use, the library exception, or face-to-face teaching activities) is not clearly available, permission to use a copyrighted work must be obtained from the copyright holder. A request to use copyrighted material should be sent to the permission department of the publisher of the work. Assume four to six weeks for a request to be processed. Permission requests should contain:

1. Title, author and/or editor, and edition.
2. Exact material to be used.
3. Number of copies to be made.
4. Intended use of the material, e.g., educational.
5. Form of distribution, e.g., hard copy to classroom, posted on internet.
6. Whether material is to be sold (e.g., as part of a coursepack).

Journal Articles. The Stanford libraries have blanket copyright permission from many journals. Before forwarding a request for an article, check with the appropriate library to see if there is a blanket permission covering the article you would like to use.

Copyright Clearance Center (CCC). The CCC is able to give permission to use a wide number of materials for a fee. Please contact CCC at www.copyright.com or (978) 750-8400.

Coursepacks. Many commercial copying services will obtain copyright permission for included materials and add the royalty to the price of the coursepack.

Evidence of Permission. Written permission should be obtained and kept by the academic department. If oral permission only is obtained by faculty members, department personnel or library staff, a written record should be kept of the oral permission.

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Internet and Electronic Medium Copyright

In General. Digitally created works and copyrighted works transformed into a digital format and placed on-line or on the internet are protected.

Exercise Caution. Be especially careful of copyright/fair use principles when downloading material from the internet. There is growing concern about the ability to pull copyrighted material from the internet without permission. Note too that material may have been placed on the internet without the author’s permission.

The Fair Use Doctrine. In 1998, the Conference on Fair Use (CONFU) attempted to form guidelines specifically addressing copyrighted material found on the internet. Unfortunately, there was no consensus at the conference, and many organizations, including Stanford, have not endorsed the guidelines. In addition to the traditional four fair use factors, you should consider the following additional concern:

Is access to the material limited or protected? Using material that is password protected or otherwise guarded from general distribution by some device weighs against a finding of fair use. Further, it is a violation of law to circumvent an access control mechanism and use copyrighted material — even if the use would otherwise be fair. See the Digital Millennium Copyright Act information sheet. Conversely, limiting access to the new work to a small audience by using passwords or other access control devices weighs toward a finding of fair use. (Some Stanford libraries will accept e-reserves, which are access controlled and limited to currently enrolled students.)

Personal Use. Generally, posting material on the internet by the copyright owner gives an internet user the right to use that material for his or her own personal use. It does not necessarily give the user the right to redistribute that material.

Protect the Copyright. Electronic distribution of a copyrighted work should state: This work is protected by copyright laws and is provided for educational instruction only. Any infringing use may be subject to disciplinary action and/or civil or criminal liability as provided by law.

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THE DIGITAL MILLENNIUM COPYRIGHT ACT

In General. The DMCA provides limited protection for Internet service providers from the infringing acts of their users. It also prohibits gaining unauthorized access to a work by circumventing a technological protection measure put in place by the copyright owner to control access to the work. Such circumvention is prohibited even if the use of the work would otherwise be a fair use. The DMCA also prohibits trafficking in technology or devices that are primarily designed to circumvent such a technological protection.

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COPYRIGHT AND FAIR USE RESOURCES

Stanford’s Copyright Ownership Policy. The University’s copyright policy establishes that all rights in copyright, regardless of their form of expression, remain with the creator, except in specified cases where law or University policy require otherwise. For more information, please refer to the policy at http://www.stanford.edu/dept/ DoR/rph/5-2.html

Stanford’s Fair Use Resources. Further guidelines and useful material are located at https://fairuse.stanford.edu.

Guidelines for Classroom Copying. These guidelines were prepared by the Authors League of America and the Association of American Publishers. 17 USC 107

Guidelines for Educational Multimedia. These guidelines were prepared by the Consortium of College and University Multimedia Centers. http://www.libraries.psu.edu/mtss/fairuse/guidelines.html.

Guidelines for Digital Images, Distance Learning, Computer Software. The TEACH Act, currently pending before Congress, would allow educators to put material on-line for use outside of the classroom. Until this bill becomes law, many educators are relying on the Conference on Fair Use Guidelines (CONFU). These CONFU guidelines are located at http://www.uspto.gov/web/offices/dcom/olia/confu/. Not all CONFU participants agreed with the developed guidelines and Stanford has not endorsed this policy. Stanford’s policy provides: “In addition to software, all other copyrighted information . . . retrieved from computer or network resources must be used in conformance with applicable copyright and other law.” Administrative Guide Memo 62 (2) (a) (3). http://adminguide.stanford.edu/62.pdf.

Computer Software. Please see “Copying of Computer Software,” Administrative Guide Memorandum 62 located at http://adminguide.stanford.edu/ch6contents.html. Section 2(a) of that policy provides: “Computer users must respect copyrights and licenses to software and other online information” and “[a]ll software protected by copyright must not be copied except as specifically stipulated by the owner . . . or otherwise permitted by copyright law. Protected software may not be copied into, from or by any University facility or system, except pursuant to a valid license or as otherwise permitted by copyright law.” The memo further provides that those who violate the policy will be subject to disciplinary action.

Further Assistance. Please contact the Fair Use Panel at 723-5553.

TO: Members of the Faculty, Hoover Institution Fellows, Academic Staff, and Library Directors
FROM: Condoleezza Rice, Provost
RE: Copyright Reminder

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This memorandum provides a general description of the applicability of the copyright law and the so-called “fair use” exemptions to the copyright law’s general prohibition on copying. It also describes “safe harbor” guidelines applicable to classroom copying.

The federal copyright statute governs the reproduction of works of authorship. In general, works governed by copyright law include such traditional works of authorship as books, photographs, music, drama, video and sculpture, and also software, multimedia, and databases. Copyrighted works are protected regardless of the medium in which they are created or reproduced; thus, copyright extends to digital works and works transformed into a digital format. Copyrighted works are not limited to those that bear a copyright notice. As a result of changes in copyright law, works published since March 1, 1989 need not bear a copyright notice to be protected under the statute.

Two provisions of the copyright statute are of particular importance to teachers and researchers:

• a provision that codifies the doctrine of “fair use,” under which limited copying of copyrighted works without the permission of the owner is allowed for certain teaching and research purposes; and
• a provision that establishes special limitations and exemptions for the reproduction of copyrighted works by libraries and archives.

The concept of fair use is necessarily somewhat vague when discussed in the abstract. Its application depends critically on the particular facts of the individual situation. Neither the case law nor the statutory law provides bright lines concerning which uses are fair and which are not. However, you may find it helpful to refer to certain third party source materials. Guidelines for classroom copying by not-for-profit educational institutions have been prepared by a group consisting of the Authors League of America, the Association of American Publishers, and an ad hoc committee of educational institutions and organizations. In addition, fair use guidelines for educational multimedia have been prepared by a group coordinated by the consortium of College and University Multimedia Centers (CCUMC). These guidelines describe safe harbor conditions, but do not purport to define the full extent of “fair use.”

The guidelines, as well as other source material, are available through a variety of resources, including through the world wide web site https://fairuse.stanford.edu. Stanford University Libraries & Academic Information Resources, in collaboration with the Council on Library Resources and Justia, are sponsors of this web site. The site assembles a wide range of materials related to the use of copyrighted material by individuals, libraries, and educational institutions.

I hope that the discussion below helps to clarify further the nature of “fair use.”

I. Fair Use for Teaching and Research

The “fair use” doctrine allows limited reproduction of copyrighted works for educational and research purposes. The relevant portion of the copyright statue provides that the “fair use” of a copyrighted work, including reproduction “for purposes such as criticism, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” is not an infringement of copyright. The law lists the following factors as the ones to be evaluated in determining whether a particular use of a copyrighted work is a permitted “fair use,” rather than an infringement of the copyright:

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and
• the effect of the use upon the potential market for or value of the copyrighted work.

Although all of these factors will be considered, the last factor is the most important in determining whether a particular use is “fair.” Where a work is available for purchase or license from the copyright owner in the medium or format desired, copying of all or a significant portion of the work in lieu of purchasing or licensing a sufficient number of “authorized” copies would be presumptively unfair. Where only a small portion of a work is to be copied and the work would not be used if purchase or licensing of a sufficient number of authorized copies were required, the intended use is more likely to be found to be fair.

A federal appeals court recently decided an important copyright fair use case involving coursepacks. In Princeton University Press, et.al. v. Michigan Document Services, the U.S. Court of Appeals for the Sixth Circuit concluded that the copying of excerpts from books and other publications by a commercial copy service without the payment of fees to the copyright holders to create coursepacks for university students was not fair use. The size of the offending excerpts varied from 30 percent to as little as 5 percent of the original publications. Although the opinion in this case is not binding in California, it is consistent with prior cases from other courts, and there is a reasonable likelihood that the California federal courts would reach a similar conclusion on similar facts.

Where questions arise, we suggest that you consult the guidelines for classroom copying and other available source material available on the fair use web site, cited above. Please note that the guidelines are intended to state the minimum, not the maximum, extent of the fair use doctrine. Thus, just because your use is not within the guidelines, it is it not necessarily outside the scope of fair use. In the absence of a definitive conclusion, however, if the proposed use deviates from the guidelines, you should consider obtaining permission to use the work from the copyright owner. In instances where the fair use question is important and permission would be difficult or expensive to obtain, a member of the Fair Use Advisory Group (described below) or the Legal Office can assist in analyzing whether a particular proposed use would constitute “fair use.”

Some photocopying services will obtain copyright permission and add the price of the royalties, if any, to the price of the materials. A request to copy a copyrighted work should generally be sent to the permission department of the publisher of the work. Permission requests should contain the following:

• Title, author, and/or editor, and edition
• Exact material to be used, giving page numbers or chapters
• Number of copies to be made
• Use to be made of the copied materials
• Form of distribution (classroom, newsletter, etc.)
• Whether the material is to be sold

Draft form letters can be obtained from or reviewed by a member of the Fair Use Advisory Group or the Legal Office.

For certain works, permission may also be sought from the Copyright Clearance Center (CCC) which will quote a charge for works for which they are able to give permission. The Copyright Clearance Center can be contacted at www.copyright.com or (978) 750-8400, but it may be easier to go through a copying service that deals regularly with the CCC.

II. Course Reserves

Some libraries at Stanford will refuse to accept multiple photocopies or to make photocopies of copyrighted materials needed for course reserves without first having permission from the copyright holder. Other libraries on campus will accept a limited number of photocopies for course reserves. Consult individual libraries for clarification of their policies.

While the libraries have blanket permission from dozens of journals, obtaining permission sometimes takes a good deal of time. Experience in obtaining permission has shown that an inquiry addressed to a journal publisher frequently produces information that the copyright is actually held by the author, and four weeks is often inadequate to obtain such permission. Four to six weeks is considered the norm.

Permission may be obtained in a number of ways:

• Upon request, some libraries on campus will obtain materials for course reserve. In these cases, the librarian will write to obtain permission to photocopy or to purchase reprints. However, most libraries do not provide this service.
• Written permission may be obtained by the academic department.
• Oral permission may be obtained by faculty members, departmental secretaries, or library staff, in which case a written record is needed of that action.

Note that filling course reserve requirements may require two to three months before the quarter begins if the library does not already have a copy of the publication, if the publication is out of print, or if the copyright holder is not readily available.

III. Resources

Additional information on copyright issues may be found on the world wide web site https://fairuse.stanford.edu.

Questions about the copyright law as it affects faculty and staff in their University capacities should be directed to a member of the Fair Use Advisory Group (see attachment) or to Linda Woodward in the Legal Office (3-9751), who can put you in touch with the appropriate lawyer to respond to your specific question. Questions about library policy and course reserves should be addressed to Assunta Pisani, Associate Director, University Libraries (apisani@stanford.edu or 3-5553). Information concerning the application of copyright law to computer software can be found in the memorandum “Copying of Computer Software” distributed by the Library and Information Resources and in Administrative Guide Memorandum 62.

Thank you for your cooperation in ensuring the observation of these guidelines.