Frequently Asked Questions

[Editor's note: the answers to many of these questions are taken verbatim from the previous edition of the MLA Copyright Website. Many of these are out of date and are undergoing revision, but are included here in the meantime. All answers on this page are subject to change. If you have questions, please feel free to contact the editor.]

Warning: copyright laws are both complex and subtle, and the penalties for mistakes can be severe. The material on this page is intended as a helpful resource, but should in no way be considered legal advice. It is always advisable to consult qualified legal counsel when establishing policies or otherwise taking actions which might constitute infringement.

Copyright In General

What is copyright?

Copyright is one of three types of laws (the others being trademarks and patents) through which congress exercises its constitutional authority "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." (U.S. Const, art. I cl.8) The exclusive rights which Congress grants under the copyright are:

  1. To reproduce a work,
  2. To prepare derivative works,
  3. To sell, rent, lease, lend, or otherwise distribute the work,
  4. To perform the work publicly,
  5. To display the work publicly, and
  6. To publicly perform a work on a sound recording via digital transmission

These exclusive rights are cumulative and may overlap. The exclusive right to perform a work publicly is limited to "literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works," (17 USC 106(4)) and to sound recordings in the case of digital audio transmissions (17 USC 106(6)). The U.S. copyright law is contained in the U.S. Code, Title 17. Section 106 lists the exclusive rights, while sections 107-122 cover limitations in the scope of copyright.

What works are protected by copyright?

To qualify for copyright protection, a work must satisfy two requirements: it must be original, and it must be fixed in a tangible medium of expression. The law leaves the phrase ''original works or authorship" undefined, but does list eight tangible media of expression which are included:

  1. literary works
  2. musical works, including any accompanying words
  3. dramatic works, including any accompanying music
  4. pantomimes and choreographic works
  5. pictorial, graphic, and sculptural works
  6. motion pictures and other audiovisual works
  7. sound recordings
  8. architectural works

Works need not necessarily be completely original to qualify for copyright protection. The law also protects original contributions to derivative works.

The scope of copyright in general is covered in 17 USC §2 and derivative works are covered in §3. Works created or published outside the United States are covered by §4 and §4a.

What is not protected by copyright?

Works which are not original, or which are not tangibly fixed, are not protected. The work need only display a modicum of originality, but original authorship must be present. An example of a work which is not protected due to lack of originality is the white pages of a phone book (see Feist v. Rural, 499 U.S. 340 (1991)). The law identifies several classes of material which are not subject to copyright protection:

  • Ideas
  • Procedures, processes, systems, and methods of operation,
  • Concepts and principles
  • Discoveries

As this relates to music, ideas for compositions are not protected, nor are styles of performing or new ways of generating sounds. A composition that exists only in the composer's head is not eligible for copyright protection because it is not fixed in a tangible medium of expression. Similarly, the content of an improvisational jazz performance is not covered unless it has been recorded. Since ideas are not subject to copyright, expressions of ideas may not be subject to copyright if (as in the case of most recipes) if the expression is essentially the only way to express the idea. This is known as the merger doctrine. In addition, "sweat of the brow" is not protected by copyright. Intensive labor expended in creation of a work is not in itself sufficient to earn copyright protection (Feist). Generally, titles of compositions, songs, books, etc., and entities of similar scope are not subject to copyright protection, though they could be subject to trademark laws.

What works are protected by copyright?

The length of copyright is normally a function of one of three variables: the date of publication, the date of creation and the death of the author. In general:

  • Copyright expires 70 years after the death of the author or, in the case of joint works, the last surviving author.
  • In the case of corporate authorship, copyright expires 95 years after the publication date.
  • In the case of unpublished works where the author's identity or date of death is not known, copyright expires 120 years after the work's creation.

There are numerous complicating factors, not the least of which is the fact that most works published prior to the 1976 copyright revision are subject to the formalities imposed by the 1909 copyright act. For helpful, and more thorough coverage of the topic, see Peter Hirtle's chart illustrating the Copyright Term in the United States. The law governing copyright term is found in 17 USC Ch. 3.

What is the Public Domain?

The Public Domain (often abbreviated, "PD") is a body of intellectual material which is not under copyright and may be used freely without permission. This includes:

  • Works which the owner has explicitly moved into the public domain,
  • Works in which copyright has expired (this includes all works published before 1923),
  • Works in which copyright has lapsed due to failure comply with necessary formalities such as renewal and notice (applies only to works published before March 1, 1978), and
  • Works created by the United States Government (see 17 U.S.C. §5), as well as the works of some state and local governments.

For more detailed information about the copyright term under United States Law, see Peter Hirtle's chart illustrating the Copyright Term in the United States.

Are unpublished works protected by copyright?

As long as they constitute copyrightable material and are fixed in a tangible medium of expression, unpublished works are protected by copyright regardless of national origin.

The law governing the inclusion of unpublished works is 17 USC §4.

Are works in anthologies, collections, or periodicals protected?

Each individual work contained within an anthology or compilation carries its own copyright. The compiler is responsible for obtaining permission to use copyrighted material in a compilation. Unless a transfer of copyright is negotiated with the copyright owner, the work of each author remains under its original copyright.

The compiler owns the copyright in any original material contributed to the compilation. In some cases, the arrangement of an anthology or compilation may itself be protected; however, the minimal standard of originality must still be met. A simple alphabetical arrangement does not qualify for protection.

Public domain material used in a compilation remains in the public domain and may be reproduced without permission.

The law governing compilations is 17 USC §3.

Can works of foreign origin be under copyright in the U.S.?

Yes. The United States has signed several treaties governing copyright in foreign works, which have been ratified by the Senate and incorporated into U.S law. Though there are exceptions, works published outside the United States normally receive similar or identical treatment to works published within the United States.

Beginning January 1, 1996, many works that were out of copyright in the United States, but under copyright in other countries, were restored to copyright in compliance with the General Agreement on Tariff's and Trade (GATT) to which the United States is a signatory.

Most of the law covering copyright in foreign works is contained in 17 USC §4. The law governing the restoration of copyrights under GATT is found in §4a.

What is the difference between a phonorecord and a sound recording?

For the purposes of copyright, a "phonorecord" is a material object to which sounds are fixed. This includes digital media, such as compact discs and digital audio tapes, as well as analog media such as records, wax cylinders and cassette tapes. It does not include audiovisual works, so DVDs are not included (though DVD-A likely is, and there may be a separate copyright for an appendix soundtrack).

"Sound recordings" are distinct from phonorecords. Sound recordings are defined as works that "result from the fixation of a series of musical, spoken, or other sounds...regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied." As with phonorecords, sound recordings are distinct from audiovisual recordings.

Essentially, "phonorecord" refers to a physical object, while "sound recording" refers to intellectual content. A phonorecord can contain several sound recordings (different works recorded on the same disc), while one sound recording can be fixed on several different types of phonorecords (cassette tape, LP record and compact disc, for example).

The official definitions of the terms can be found in 17 USC §1.

Fair Use

What is Fair Use?

Fair use is a privilege provided for by the United States copyright law, which allows for the use of copyrighted material without permission. It is an affirmative defense, the concept for which grew out of more than a century of case law. The concept is very loosely defined by the law, and courts have repeatedly (for example, in Campbell v. Acuff Rose Music) stated that fair use must be determined on a case-by-case basis, making it one of the most complex areas of copyright law.

What exactly constitutes a fair use is left open by the statute. For example, the law does not exclude any of the exclusive rights from fair use, but it does specifically include the right of reproduction. The law lists four factors to be considered in deciding fair use cases. And though courts consistently weigh each of the factors individually, the law does not exclude the possibility of other possible factors.

Purpose plays an important role in determining whether a use is fair. The law suggests several possible fair uses, such as "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research," but this is not an exhaustive list. Other factors to be considered include, but are not limited to: the nature of the work (is the work published or unpublished? factual or creative?), the amount used, and the effect on the market for the work.

The law governing fair use is contained in 17 USC §7.

Reserves

What section of the Copyright Act governs copying for reserve?

The Copyright Act does not specifically address the rights of copying for reserve. General practice among libraries rests on the assumption that such copying rights stem from Section 107 and/or Section 108 of the Act. Both ALA and ARL have asserted that the library reserve room functions as an extension of the classroom and, thus, is permitted to provide copies of copyrighted works under Section 107, related to the rights of copying for purposes of teaching.

ARL also asserts that Section 108(d) and Section 108(e) provide for the copying of copyrighted works for reserve. However, since these sections of the law do not apply to musical works, as per Section 108(h), the rights for copying of musical works for reserve would derive almost entirely from Section 107. This is also affirmed in the Second Report of Register of Copyrights, January 1988, which states, "As the legislative history of Section 108 makes clear, reproduction of music, pictorial and graphic works, motion pictures and most audiovisual works for private study, scholarship, and research is to be governed by fair use under Section 107."

How many copies of an item can the library place on reserve?

Single copies Under Section 108(d), a library has the right to reproduce for a user single copies of entire articles or small parts of other copyrighted works. Under Section 108(e), a library has the right to reproduce for a user complete works or substantial parts of works if a copy cannot be obtained at a fair price. This has been interpreted to mean that libraries can make single photocopies of entire articles, among other items, or entire works for reserve, following the provisions of Section 108(d) and (e), at the request of faculty members. [ARL/Repro], [Martell] The Classroom Guidelines also provide for the reproduction of single copies of entire articles, book chapters, etc. under Section 107.

Multiple copies The Classroom Guidelines for multiple copies are stricter, applying numerical limits which effectively mean that most articles, essays, and book chapters can not be copied in their entirety. [Martell] ALA's Model Policy is less restrictive, asserting, "Fair use cannot always be expressed in numbers -- either the number of pages copied or the number of copies distributed. Therefore, you should weigh the various factors listed in the Act and judge whether the intended use of photocopied, copyrighted material is within the spirit of the fair use doctrine." ACRL has also taken a broader position: "Colleges and universities and their libraries should continue to interpret the Copyright Act in a manner that is in the spirit of the law and consistent with the rights and needs of both copyright proprietors and the academic community. . . ." [ACRL]

Musical materials Section 108(d) and (e) do not apply to musical materials, so the copying of musical materials for reserve is generally justified under Section 107, or fair use. In this instance, the Music Guidelines are more restrictive for musical works than the Classroom Guidelines are for prose works by denying the right to reproduce single or multiple copies of "performable units." The applicable language in A.2 of the Music Guidelines is stated broadly enough to encompass both the copying of music scores and the dubbing of music sound recordings, though neither is specified. The Music Guidelines reflect the minimum standards of fair use, and it can be argued that there is no reason to assume that the philosophy which engenders ALA and ARL positions mentioned above under Multiple copies is not equally applicable to the photocopying or dubbing of complete individual movements, sections, or other performable units of music scores. ARL has suggested that the right to make and distribute copies of a single work, as agreed to in the MLA/MPA amendment to Section 108 [Report], may already be given under Section 107. [ARL/Repro]

Can copyrighted materials be copied for reserve without permission?

At the very least, Section 108 allows for the copying of copyrighted materials by libraries under provisions specified in that section. Even music materials may be copied under Section 108(b) and 108(c). There is no reason to assume that copies made under the provisions of Section 108 could not be placed on reserve. Such copies should contain a notice of copyright. Additionally, the copies made under Section 108(d) and (e) require that the copy become the property of the user, suggesting the need for such copies to be returned to the faculty member at the end of the term. [ARL/Repro].

Under Section 107:
ALA's Model Policy states: At the request of a faculty member, a library may photocopy and place on reserve excerpts from copyrighted works in its collection in accordance with guidelines similar to those governing formal classroom distribution for face-to-face teaching . . . . These guidelines apply to the library reserve shelf to the extent it functions as an extension of classroom readings or reflects an individual student's right to photocopy for his personal scholastic use under the doctrine of fair use." [Hutchings] Surveys and reviews of college and university libraries' policies suggest that this philosophy is prevalent, though not uniformly implemented in terms of creating multiple copies, determining ownership of copies, specifying who does the copying, and providing for the reuse of copies [Butler], [Spec.]. Assuming the applicability of the Classroom and Music Guidelines, carefully defined levels of copying for reserve use is permitted by them, as well. As in question 3 above, any copies of materials made from reserve should contain a notice of copyright.

It is worth noting here that the ALA policy clearly states that it is the right of the library to make the copies; i.e., it is not necessary to receive the copies from the faculty member. However, as a practical matter, to protect themselves from liability, many libraries require faculty members to provide the copies, especially in the instance of requested multiple copies. [Spec.] Additionally, it is important that the copying activity for reserve be initiated by the faculty member and not the library. [Hutchings], [Martell]

Do the Classroom and Music Guidelines apply to reserve operations?

As with the Copyright Law, no specific mention of reserve use is made in either set of Guidelines. However, if Section 107 and Section 108 of the law can be said to apply to reserve use, so can the Guidelines, assuming the validity of these documents, which has been seriously and widely questioned due to their restrictiveness with respect to classroom situations [Martell], [Hutchings], [ACRL], [Spec.]. There is a wide variety in the degree and manner that colleges and universities implement the Guidelines for reserve use [Butler], [Spec.].

Additional Sources:

Can photocopied material placed on reserve be reused?

The Classroom Guidelines specify that "Copying shall not be repeated with respect to the same item by the same teacher from term to term" (Guidelines III.C.c). This presumes the ability of the teacher to obtain the necessary permission for copying the materials in the time frame following the first instance of copying. The ALA Model Policy also supports this view, stating, "The classroom or reserve use of photocopied materials in multiple courses or successive years will normally require advance permission from the owner of the copyright." [Hutchings] In this instance, as with other aspects of the law, college and university libraries differ in practice: some return all copies, single or multiple, to faculty members after each term; others are willing to maintain a single copy for reuse, without obtaining additional permission for use. [Spec.] A review of practice shortly after the enactment of the law suggested that some librarians felt that there was no need to limit in this manner since the law and Classroom Guidelines refer to the repeated copying and not repeated use of material. [Butler]

Preservation

What section of the Copyright Act provides for libraries preserving their collections?

USC §8(b) and (c) provide for preservation copying for libraries. Subsection (b) allows libraries to make preservation copies of unpublished works currently in their collection. Subsection (c) allows libraries to make replacement copies for published works that are "damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete." A format is obsolete only if machines to render the objects is no longer reasonably available in the marketplace. Permission to copy applies only to libraries and archives whose collections are 1) open to the public and 2) open to researchers outside of the institution of which the collection is a part. The copying for preservation or replacement may not be made for the purpose of direct or indirect commercial advantage. Up to three copies made under subsections (b) or (c). If these copies are made digitally, they are not permitted to leave the library's premises in digital form.

A box set of 4 CDs was returned with v.2 disc missing. Is it possible to borrow a copy and burn a CD to complete the set?

If you can obtain the disc from a distributor or publisher at a fair price then it should be purchased. If it is not possible to purchase the disc from a vendor at a fair price then, provided you meet the three requirements outlined in 17 U.S.C. Sec. 108(a), you may invoke section 108(c) and make a copy of the missing disc to replace the lost one.

The three requirements are that:

  1. The reproduction or is made "without any purpose of direct or indirect commercial advantage,"
  2. The library be either open to the public, or, at the least, available to those outside the library's community who are doing specialized research, and
  3. The reproduction include a copyright notice or, if no copyright notice exists on the original item, an indication that the work may be protected by copyright.

We have a microfilm copy of an item that is used so much that the microfilm is now scratched. Can we make a preservation copy before it is completely unreadable?

Provided that the library has, after a reasonable effort, determined that an unused copy of the microfilm cannot be purchased at a fair price, then this should qualify for copying under 17 U.S.C. Sec. 108(c) since the reel has been damaged and is deteriorating. If the microfilm is available at a reasonable price, then copying under Sec. 108(c) is not permitted. Unfortunately, the law does not specify what constitutes a reasonable effort, but the House Report on the bill (H.R. Rep. No. 94-1476) states that while it will vary from situation to situation, Congress' intent is that it would always require searching in commonly-known, U.S.-based trade sources, the publisher or copyright owner, and any authorized reproduction services. The library may not circulate digital copies made under Sec. 108(c) outside the library's premises, but analog copies may be circulated.

If the library's acquisition of the microfilm was subject to a binding licensing agreement, then the terms of that license will supersede any provisions in the law when the two are in conflict.

See: U.S. Congress, House of Representatives, Committee on the Judiciary, Copyright Law Revision, 94th Cong., 2nd sess., 1976, H. Rept. 94-1476, 75-76.

May several students from a class borrow a videotape from the public library and view it at home?

Yes. In-home viewing by the student, alone or with a small group, is permitted.

May several students from a class view a videotape in a private room at the public library? In an academic library?

It could be argued that viewing a videotape in the public library would not be permitted because more than one person would be watching it, making it a public performance. Small groups are usually ok, but this is a controversial area of the law. Consult legal counsel, and have a copyright policy approved by them. Viewing by a small class group in an academic library would generally be allowed under the classroom exemption.(17 USCS Sec. 107 and Sec. 110).

Under what conditions may I show a video to a class of students?

In-classroom performance of a copyrighted video is permissible under the following conditions summarized from Section 110:

  1. The performance is by instructors (including guest lecturers) or by pupils.
  2. The class is part of the regular curriculum.
  3. The performance is in connection with face-to-face teaching activities.
  4. The entire audience is involved in the teaching activity.
  5. The entire audience is in the same room or same general area.
  6. The teaching activities are conducted by a non-profit educational institution.
  7. The performance takes place in a classroom or similar place devoted to instruction, such as a school library, gym, auditorium or workshop.
  8. The video is lawfully made; the person responsible had no reason to believe that the video was unlawfully made.
May a professor use the school auditorium to show a video to 4 classes studying the same work?

Yes, as long as the auditorium is actually used as a classroom for systematic instructional activities.

May several students who missed the classroom performance of a video view it at some other time in the school library?

Generally, yes. If the students will be in a small viewing room which is not used as a classroom, the performance may be permissible if only members of the class are present and the performance is not open to the general public. If the library contains regularly-scheduled classrooms, the face-to-face teaching exception applies. This does not have to be the room where the class usually meets. (17 USCS Sec. 110)

May a faculty member show a video labeled ’Home Use Only’ to her class? How about a video rented from a video store?

Yes, provided that the performance is "in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction." However, if the copy of the video was unlawfully made (or the responsible party had reason to know it was unlawfully made), then the showing would be an infringement.[17 USC 110(1)]

May a community discussion group which meets in a high school classroom view a videotape without securing permission from the copyright owner?

No. The group does not consist of class members enrolled in a non-profit institution, nor is it engaged in formal instructional activities of such an institution. The group must ask for the permission of the copyright owner in order to view the tape.

May a library keep the original video as a master and reproduce circulation copies from it?

Unless the otherwise provided for in a license or purchase agreement, this is an infringement. Some companies have a pricing structure which allows a library to pay a higher price to purchase a video with the right to produce a specific number of duplicate copies.

A video becomes jammed in a playback unit and is partially ruined. May the library make a copy?

If the library has been unable after a reasonable effort to secure an unused replacement at a reasonable cost, 17 USC Sec. 108(c) allows duplication of the tape for replacement purposes.

May a library make a copy of a videotape in order to convert from Beta format to VHS? From PAL to VHS? From laserdisc to VHS?

Copying to change format (called format-rescue conversion) from an obsolete format (such as Beta) to a modern one is an infringement unless an unused copy in the modern format is unavailable. A format is considered to be obsolete if the machine necessary to show it is no longer manufactured or available in the commercial marketplace. Be aware that this is a controversial area of the law. (17 USCS 108 (c) and (i)). Consult legal counsel, and have a copyright policy approved by them in place.

Since PAL is a modern format that is currently used outside the United States, it would be an infringement for a library to convert a PAL tape to NTSC VHS. Instead, a multi-standard VCR may be used to convert the signal so that it may be shown on an American (NTSC) TV monitor. These multi-standard VCRs are commonly available (although expensive) and most will show both PAL and SECAM videotapes. The Panasonic AG-W1 is an example of these players/converters.

What should a librarian do if a patron asks about borrowing a video for purposes which may be infringing?

In general, the librarian's duty in this situation is merely to state that the video is subject to the copyright laws. However, although there is no clear duty to refuse to lend, there is a point after which a library's continued lending with actual knowledge of infringement could possibly result in liability for contributory infringement.

Sound and Notation Files

Do I need to secure permission from a publisher to use public domain music in a MIDI sound file?

Yes and no. You must secure permission if the notes or editorial marks of the edition are apparent in the sound file. However, if the music is not traceable to any one specific edition, then permission probably wouldn't be necessary. In the case of Urtext, where there should be no fingerings, slurs, notes, etc. added by an editor without indicating such, it should be safe to use.

Do I need to secure permission from a publisher to use public domain music in notation software?

Yes and no. You must secure permission if the typography or editorial marks of the edition are used in any type of reprint, including electronic. However, if the music is transcribed to another format (using a notation application, for example), and if it isn't traceable to any one specific edition, then permission probably wouldn't be necessary. In the case of Urtext, where there should be no fingerings, slurs, etc. added by an editor, it should be safe to use.

Video

Are Videos protected by copyright?

Yes. For libraries having questions about copyright of videos, the most relevant sections of the U.S. Copyright Law are Sec. 107 (fair use), Sec. 108 (library uses of copyrighted materials), and Sec. 110 (public performance of audiovisual works).

All audiovisual works, such as films and videos, are subject to the exclusive rights outlined in Sec. 106. Although rights of reproduction, adaptation, distribution, public performance, and display belong to the copyright holders, the doctrine of fair use (17 USC 107) applies to these audiovisual works, as it does to all published and non-published works. When trying to tell whether a specific use is exempt or not, it is best to remember that when libraries purchase a videocassette, they purchase the physical object, which is separate from purchasing the rights to the content. Copyright laws determine what libraries may and may not do with the physical videotapes they own without infringing upon the copyright they do not own.

For libraries having unattended equipment capable of making copies of videos, it is not necessary to police the use of these machines. Such equipment may instead be posted with notices, such as: MOTION PICTURE FILMS, VIDEOCASSETTES, VIDEODISCS, AND OTHER NON-PRINT AUDIOVISUAL MATERIALS ARE PROTECTED BY COPYRIGHT (17 U.S.C.S. 101 et seq.). UNAUTHORIZED USE OR COPYING MAY BE PROHIBITED BY LAW

It is recommended that every library or library system write a copyright policy specifically mentioning uses of audiovisual materials. This should be thoroughly checked by the institution's legal counsel.

Under what conditions can I show a video in a public library?

Most performances of a video in a public library would be an infringement, requiring a public performance license. Libraries which allow groups to use or rent their public meeting rooms should require the group to secure all necessary performance licenses and exempt the library from any penalties for any failure on their part to do so. The only place a video may be shown to a group without having performance rights granted is in a face-to-face teaching situation in a regularly-occurring class at a nonprofit educational institution. Public libraries do not usually meet the definition of a nonprofit educational institution in the context of having a systematic course of instruction having an instructor and students. If your library does sponsor regular classes in which videos are to be used, however, such use may possibly be covered. (17 USCS Sec. 110). Consult legal counsel, and have a copyright policy approved by them.

If a public library allows patrons to view videotapes in the library, the performances should generally be limited to one person or no more than one family at a time. A library may protect itself from possible lawsuits by posting public notices about copyright laws on video equipment. Such notices might read: MOTION PICTURE FILMS, VIDEOCASSETTES, VIDEODISCS, AND OTHER NONPRINT AUDIOVISUAL MATERIALS ARE PROTECTED BY COPYRIGHT (17 U.S.C. Sec. 101 et seq.). UNAUTHORIZED USE OR COPYING MAY BE PROHIBITED BY LAW.

Contact the individual publishers of videos already in the library's collection and seek (and pay for) performance permission. Keep meticulous records if you do this.

May the members of a community discussion group which meets at the public library view a videotape without securing permission from the copyright owner?

Performance of a commercially produced video in a public library to members of the general public is an infringement if performance rights are not granted by the copyright holder. The only place a video may be shown to a group without having performance rights granted is in a face-to-face teaching situation in a regularly-occurring class at an educational institution. Public libraries do not meet the definition of a nonprofit educational institution in the context of having a systematic course of instruction having an instructor and students. If your library does sponsor regular classes in which videos are to be used, however, such use may possibly be covered.(17 USCS 110)

There are several methods of acquiring permission for public performances:

  • Buy videos with performance rights already attached. PBS, Films for the Humanities and Sciences, Annenberg CPB, Library Video Company, and many other video publishers sell videos with performance rights already attached.
  • Acquire temporary performance rights from the Motion Picture Licensing Corporation. These are called umbrella licenses, and are used for showing videos already owned.The cost of these licenses is based on the population of the area served by the public library, factored in with the size of the auditorium where the the video will be displayed. Covers mostly Hollywood-type entertainment. Phone 800-462-8855, or 310-822-8855.
  • Rent a film or video from Swank Motion Pictures, Inc. These all have performance rights attached. Again, covers mostly Hollywood-type entertainment. Phone 800-876-5577.
  • Rent an educational film or video from the University of California Extension, Center for Media and Independent Learning. Phone 510-642-0460.
  • Rent an educational video from the University of Washington Media Center. Phone 206-543-9909.
May several students from a class borrow a videotape from the public library and view it at home?

Yes. In-home viewing by the student, alone or with a small group, is permitted.

May several students from a class view a videotape in a private room at the public library? In an academic library?

It could be argued that viewing a videotape in the public library would not be permitted because more than one person would be watching it, making it a public performance. Small groups are usually ok, but this is a controversial area of the law. Consult legal counsel, and have a copyright policy approved by them.

Viewing by a small class group in an academic library would generally be allowed under the classroom exemption.(17 USCS Sec. 107 and Sec. 110).

Under what conditions may I show a video to a class of students?

In-classroom performance of a copyrighted video is permissible under the following conditions summarized from Section 110:

  1. The performance is by instructors (including guest lecturers) or by pupils.
  2. The class is part of the regular curriculum.
  3. The performance is in connection with face-to-face teaching activities.
  4. The entire audience is involved in the teaching activity.
  5. The entire audience is in the same room or same general area.
  6. The teaching activities are conducted by a non-profit educational institution.
  7. The performance takes place in a classroom or similar place devoted to instruction, such as a school library, gym, auditorium or workshop.
  8. The video is lawfully made; the person responsible had no reason to believe that the video was unlawfully made.
May a professor use the school auditorium to show a video to 4 classes studying the same work?

Yes, as long as the auditorium is actually used as a classroom for systematic instructional activities.

May several students who missed the classroom performance of a video view it at some other time in the school library?

Generally, yes. If the students will be in a small viewing room which is not used as a classroom, the performance may be permissible if only members of the class are present and the performance is not open to the general public. If the library contains regularly-scheduled classrooms, the face-to-face teaching exception applies. This does not have to be the room where the class usually meets. (17 USCS Sec. 110)

May a faculty member show a video labeled ’Home Use Only’ to her class? How about a video rented from a video store?

Yes, provided that the performance is "in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction." However, if the copy of the video was unlawfully made (or the responsible party had reason to know it was unlawfully made), then the showing would be an infringement.[17 USC 110(1)]

May a community discussion group which meets in a high school classroom view a videotape without securing permission from the copyright owner?

No. The group does not consist of class members enrolled in a non-profit institution, nor is it engaged in formal instructional activities of such an institution. The group must ask for the permission of the copyright owner in order to view the tape.

May a library keep the original video as a master and reproduce circulation copies from it?

Unless the otherwise provided for in a license or purchase agreement, this is an infringement. Some companies have a pricing structure which allows a library to pay a higher price to purchase a video with the right to produce a specific number of duplicate copies.

A video becomes jammed in a playback unit and is partially ruined. May the library make a copy?

If the library has been unable after a reasonable effort to secure an unused replacement at a reasonable cost, 17 USC Sec. 108(c) allows duplication of the tape for replacement purposes.

May a library make a copy of a videotape in order to convert from Beta format to VHS? From PAL to VHS? From laserdisc to VHS?

Copying to change format (called format-rescue conversion) from an obsolete format (such as Beta) to a modern one is an infringement unless an unused copy in the modern format is unavailable. A format is considered to be obsolete if the machine necessary to show it is no longer manufactured or available in the commercial marketplace. Be aware that this is a controversial area of the law. (17 USCS 108 (c) and (i)). Consult legal counsel, and have a copyright policy approved by them in place.

Since PAL is a modern format that is currently used outside the United States, it would be an infringement for a library to convert a PAL tape to NTSC VHS. Instead, a multi-standard VCR may be used to convert the signal so that it may be shown on an American (NTSC) TV monitor. These multi-standard VCRs are commonly available (although expensive) and most will show both PAL and SECAM videotapes. The Panasonic AG-W1 is an example of these players/converters.

What should a librarian do if a patron asks about borrowing a video for purposes which may be infringing?

In general, the librarian's duty in this situation is merely to state that the video is subject to the copyright laws. However, although there is no clear duty to refuse to lend, there is a point after which a library's continued lending with actual knowledge of infringement could possibly result in liability for contributory infringement.

Off-Air Recording

May off-air recordings be added to the library collection?

The law which permits libraries to circulate materials is 17 USC §9, sometimes referred to as the Doctrine of First Sale. However, libraries' first sale rights apply only to copies which are legally made.

The Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes stipulate that all copies of off-air broadcasts, which rely on fair use, should be erased or destroyed after forty-five days. Though not legally binding, the guidelines suggest that this practice, at a minimum, should constitute fair use.

Must a copyright notice appear on the off-air recording?

Yes, all copies of the off-air recording must include the copyright notice on the broadcast program as recorded.

May off-air recordings be edited?

It probably depends on how you want to edit the recording and for what purpose. If the goal is to use a portion of the recording in a transformative way梡erhaps to create a parody or to make a commentary on the original梚t may very well constitute a fair use. On the other hand, simple alterations, such as editing out a particular scene, or overdubbing/erasing the soundtrack to remove offensive content, are almost certainly be illegal.

The Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes state that off-air recordings "need not be used in their entirety, but the recorded programs may not be altered from their original content. Off-air recordings may not be physically or electronically combined or merged to constitute teaching anthologies or compilations." This suggests that editing off-air broadcast recordings should, at a minimum, be done with caution.

May copies be made from off-air recordings?

A limited number of copies may be reproduced from each off-air recording to meet the legitimate needs of teachers under these guidelines. Each such additional copy shall be subject to all provisions governing the original recording.

Does fair use apply to video and audio recordings from the radio or television?

Fair use applies to all works, including audio and audiovisual works. Except where digital encryption and other protections are involved, the fair use statute makes no distinction as to how the recordings were obtained.

A set of guidelines for off-air recording of broadcast programming for educational purposes was developed by a Negotiating Committee appointed in March 1979 by Congressman Robert Kastenmeier, chairman of the House Subcommittee on Courts, Civil Liberties, and Administration of Justice. The committee included individuals from educational organizations, copyright proprietors, and creative guilds and unions.

Through consensus, the Committee developed a set of guidelines regarding fair use as it relates to recording, retaining, and using broadcast television programs for educational purposes. These guidelines refer to formal classroom use as well as use for home instruction. The committee intended for these guidelines to provide standards for both owners and users of copyrighted television programs.

It is important to note, however, that though these guidelines were agreed upon by the parties present, they are not legally binding. As with all guidelines, they should be taken into consideration, but not taken as settled law.

The guidelines were published by the U.S. Copyright Office as part of their Circular 21, which can be found here: (Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes)

Is the retention guideline different for PBS programs than for other television programs?

Since PBS programs are not "works of the United States Government" under 17 U.S.C. §5, the rules governing PBS' copyrights are no different than with other producers of television content. However, you can always contact your PBS station to inquire about uses which may not fall under fair use.

How may off-air recordings of broadcast programs be used in the classroom?

Off-air recordings may be used once by individual teachers in the course of relevant teaching activities, and repeated once only when instructional reinforcement is necessary, in classrooms and similar places devoted to instruction within a single building, cluster or campus, as well as in the homes of students receiving formalized home instruction, during the first ten (10) consecutive school days in the forty-five (45) day calendar day retention period. "School days" are school session days -- not counting weekends, holidays, vacations, examination periods, and other scheduled interruptions -- within the forty-five (45) calendar day retention period.

After the first ten (10) consecutive school days, off-air recordings may be used up to the end of the forty-five (45) calendar day retention period only for teacher evaluation purposes (i.e., to determine whether or not to include the broadcast program in the teaching curriculum) and may not be used in the recording institution for student exhibition or any other non-evaluation purpose without authorization.

What are the conditions under which off-air broadcasts may be recorded and stored?

A broadcast program may be recorded off-air simultaneously with broadcast transmission (including simultaneous cable retransmission) and retained by a nonprofit educational institution for a period not to exceed the first forty-five (45) consecutive calendar days after date of recording. Upon conclusion of such retention period, all off-air recordings must be erased or destroyed immediately. "Broadcast programs" are television programs transmitted by television stations for reception by the general public without charge.

Off-air recordings may be made only at the request of and used by individual teachers, and may not be regularly recorded in anticipation of requests. No broadcast program may be recorded off-air more than once at the request of the same teacher, regardless of the number of times the program may be broadcast.

May programs be recorded from television satellites?

Programs may not be recorded from a television satellite unless the programs are authorized for free reception or the institution obtains a license to copy the programs.

Computer Software

May I make archival back-up copies?

17 USC §7(a)(2) states that archival copies of computer software may be made provided that "such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful." Some courts have interpreted this clause to mean that archival copies may be made to guard against loss or damage to the original copy of the program. Nimmer, 8.08[C], 8-131

Are libraries allowed to lend copies of computer software programs?

17 USC §9(b)(2)(A) allows non-profit libraries to lend computer software for non-profit purposes, provided that a warning of the copyright restrictions be affixed to the packaging, in accordance with 37 CFR 201.24.

Following is the text of the prescribed warning:

Notice: Warning of Copyright Restrictions

The copyright law of the United States (title 17, United States Code) governs the reproduction, distribution, adaptation, public performance, and public display of copyrighted material.

Under certain conditions specified in law, nonprofit libraries are authorized to lend, lease, or rent copies of computer programs to patrons on a nonprofit basis and for nonprofit purposes. Any person who makes an unauthorized copy or adaptation of the computer program, or redistributes the loan copy, or publicly performs or displays the computer program, except as permitted by title 17 of the United States Code, may be liable for copyright infringement.

This institution reserves the right to refuse to fulfill a loan request if, in its judgment, fulfillment of the request would lead to violation of the copyright law.

What are the issues surrounding copyright protection systems and filtering software?

17 USC §01 (a)(1)(A) states that "no person shall circumvent a technological measure that effectively controls access to a work protected under this title." That is, a user of a body of information presented electronically (such as an Internet site) may not try to bypass the control system which allows access to that work.

17 USC §01 (d) states that non-profit libraries may be exempt from being subject to a circumvention system and gain access to the work in order to make a "good faith determination" to decide whether to acquire it, provided that access to the work is for no other purpose than to make the decision in a reasonable amount of time.

17 USC §01 (h) states that federal court may "consider the necessity" of protection systems whose "sole purpose [is] to prevent the access of minors of material on the Internet." 17 USC Section 1201 (i), however, allows for circumvention if a system attempts to collect personal information.

The Librarian of Congress, under 17 USC §01 (a)(1)(D), has been charged with publishing a list of copyrighted works which may be "adversely affected" by the circumvention provision. His report, with commentary, can be here.

Libraries have contended that these "technological measures" that control access to work inhibit fair use. For the current thought, as expressed by the American Library Association, concerning this subject, see http://www.ala.org/washoff.

May a software package be used on several machines simultaneously?

Whether a software program can be loaded onto more than one computer terminal for simultaneous use, or can be loaded onto a network for use by several users, is normally subject to the terms and conditions of the license agreement for that program. To make copies for multiple users against the terms of the license would constitute an infringement.

See Software Licenses.

How do computer software licenses affect the enforcement of copyright law?

17 USC §7 gives guidelines for the owner of a copy of a computer program. There has been much debate over who is considered to be an owner. 17 USC §2 states that there is a distinction between ownership of a copyrighted object and ownership of the "material object in which the work in embodied." For example, ownership of a compact disc does not include ownership of the recording contained in the compact disc, which is itself distinct from the musical work which is recorded.

License agreements generally override any statutory language, including the first sale and fair use doctrines.

Further, as Nimmer on Copyright [8.08[B][1], 8-126] states, "Copyright ownership is governed by federal law, whereas tangible ownership arises presumably under state law." The subject of "tangible," or material ownership, falls under guidelines outlined under the Uniform Commercial Code, and is also addressed by the proposed UCITA.

Performance Rights

Who can grant permission to perform a copyright-protected composition either live or on a sound recording?

The owner of the copyright has the right to grant permission for any public performances (including broadcasts) which do not qualify for any exemption as defined in Section 110. Ownership of the copyright begins with the composer, but the composer may have transferred ownership or contracted certain licensing rights to a publisher. Given the myriad ways in which a composition can be performed in venues worldwide, various conventions -- and corresponding collection agencies -- have been established to assist in the administration of these rights. The conventions for licensing performances of music depend on whether the composition is non-dramatic or dramatic.

Dramatic works. Operas, ballets, and musical theater works are dramatic works; in music business jargon the right to perform them is referred to as a "grand" right. Permission to perform any dramatic work must be obtained directly from the copyright owner or its licensee, which is often the publisher that sells or rents the performance materials. [Footnote: American musical theater works are, in most cases, handled differently. The publishers who print the music (individual songs, selections, or piano-vocal scores) usually do not have the right to license performances. The right to license amateur, professional, and LORT (League of Resident Theatres) productions is usually assigned by the authors to an agency such as the Rodgers and Hammerstein Theater Library, Music Theater International, Tams-Whitmark, Samual French, etc. Most authors reserve the right to license "first-class" productions (Broadway, national tours, and similar venues) as well as the use of a dramatic property in television, films, and other audiovisual media.]

Non-dramatic works. Because it is impossible for any composer and/or publisher to monitor all performances of their compositions in all media (in concert halls, clubs, on radio, television, in movies, elevators, jukeboxes, etc. -- anywhere that music is consumed in public), performing rights societies have been formed to license performances of copyright-protected music. The performing rights societies in the United States are ASCAP, BMI, and SESAC. When a composer or publisher becomes a member of a performing rights organization, the organization is granted the non-exclusive right to license non-dramatic performances on behalf of the copyright owner. This is also called a "small" right. A request for permission to perform a non-dramatic work should be made to the applicable performing rights society. The repertory controlled by ASCAP & BMI can be searched on their respective web sites.

The right to record non-dramatic works is governed by a compulsory license outlined in 17 U.S.C. 115. These licenses are available at a statutory rate, and include the right both to record the work and to arrange the work "to the extent necessary to conform it to the style or manner of interpretation of the performance involved," so long as the fundamental character of the work is not altered. However, the arrangers in such cases cannot claim copyright for a derivative work. Because of the formalities involved, it is often easiest to request a license through a mechanical license clearinghouse such as the Harry Fox Agency.

Who can grant permission to perform a copyright-protected composition either live or on a sound recording?

Does a performer or record company own a performing right in their recordings? USC 17 Sect. 114(a) specifically denies the copyright owner of a recording (i.e. the owner of the (p)) a performance right in audio recordings. However, the copyright owner of the underlying musical composition owns a performance right in the composition, and therefore, in recordings of the composition. For example, a radio station broadcasts a Nonesuch recording of the Kronos Quartet performing Different Trains by Steve Reich. Reich and his publisher are eligible to receive payment from the radio station for a performance of the musical composition; this fee is usually collected by the composer's and publisher's performing rights society. Nonesuch and the Kronos Quartet are not entitled to payment, even though they may own the rights in the performance and the copyright in the recording.

By contrast, the Berne convention (see International Protection) does recognize a performance right in sound recordings, as do most European copyright laws. In 1978 the Register of Copyrights recommended an amendment of the statute in order to provide such a right, and the recommendation elicited hot debate in the music industry. The various business interests reached consensus in a new digital performance right in sound recordings that became effective on 1 February 1996.

Is permission required to perform a copyright-protected work in public?

Section 106(4) grants the copyright owner the exclusive right to perform "literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works" in public. Mere ownership of a printed score or a sound recording does not convey the right to perform that work in public.

However, some exceptions to Section 106(4) do exist. In order to accommodate educational and other non-profit uses of music, Section 110 includes ten lengthy limitations to the performing right as defined in Section 106(4). The exemptions most relevant to music libraries and their patrons are:

  • Instructional performances. Section 110(1) provides an exemption to use any work in face-to-face instruction in "a classroom or similar place devoted to instruction." The performance must be by "instructors or pupils" in a nonprofit educational institution. Guest lecturers qualify, but outside performers do not.
  • Instructional broadcasts. Section 110(2) provides an exemption for instructional broadcasting of non-dramatic works only. The performance must be "a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution" and it must be "directly related and of material assistance to the teaching content" of the program. Section 114(b) deals specifically with public broadcasting of sound recordings: "The exclusive rights of the owner of copyright in a sound recording under clauses (1), (2), and (3) or Section 106 do not apply to sound recordings included in educational television and radio programs (as defined in section 397 of title 47) distributed or transmitted by or through public broadcasting entities (as defined by Section 118(g)): Provided, that copies or phonorecords of said programs are not commercially distributed by or through public broadcasting entities to the general public."
  • Religious performances. Section 110(3) makes exempt "performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature . . . in the course of services at a place of worship or other religious assembly." This exemption does not include broadcasts.
  • Certain Other Nonprofit Performances. Section 110(4) exempts the performance of a nondramatic literary or musical work (excluding broadcasts) "without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers" if there is no direct or indirect admission charge, or if the proceeds after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of objection to the performance.

Is it always the responsibility of the performer to obtain the performing rights license?

Not necessarily. Usually this responsibility falls to the producer of the public presentation. For instance, most universities, public auditoriums, radio stations, orchestras, etc., negotiate "blanket" licenses with the various performing rights agencies. These licenses cover all performances of copyright-protected works controlled by the particular agency. (Often producers will attempt to return this responsibility to the performers in the engagement contract.)

Copyright Claims

Do I need permission to make an arrangement of another composer’s composition or song?

Yes. 17 USC §6(2) grants the copyright owner the exclusive right "to prepare derivative works based upon the copyrighted work." A work consisting of editorial revision, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work." In order to claim an infringement, the owner of the original copyright must show that the derivative work incorporates a portion of the copyrighted work in some form and is substantially similar to the original. [Latman, p. 214]

Does the commissioner of a work own the copyright?

Not usually, but copyright ownership of the commissioned work should be specifically reserved for the composer in the commissioning agreement. An excellent brochure, "Commissioning Music: A Basic Guide," is available from Meet the Composer, Inc., 2112 Broadway, Suite 505, New York, NY 10023.

Can the composer control and oversee all recordings of his or her compositions?

No. For "nondramatic musical works," the composer's exclusive rights to reproduce and distribute recordings of an original work are subject to compulsory licensing. The composer controls these rights only the first time the work is recorded commercially. Thereafter, a recording company may obtain a compulsory license from the copyright owner to release protected compositions on sound recordings (see Section 115(a)(1)).
see also Mechanical and Synchronization Licenses

Who can claim copyright in an original work?

Although copyright initially vests in the creator of the original work, it may be transferred or licensed to another person or persons, such as a publisher, record company, commissioning agency, video company, or performing rights agency (see Section 201(d)). This transfer may be for the life of the copyright or for a more limited period of time. Copyright in a contribution to a periodical or other collective work is separate from copyright in the collective work as a whole and subsists initially with the author of the contribution.

How does copyright affect composers and authors?

Copyright law extends beyond specific regulations pertaining to the physical reproduction of protected works. Section 106 outlines a number of "exclusive" rights granted to the copyright holder. These rights govern the public display, public performance, sale or lease, transmission by digital means, reproduction in all forms of media, arrangement and parody, and derivative uses of copyrighted works. Copyright law also provides for exceptions to these rights, depending on the type of work and the uses made of that work by others.

How are compositions registered with the U.S. Copyright Office?

Registration forms are available online as PDF files at the U.S. Copyright Office web site, by mail through the Register of Copyrights, Copyright Office, Library of Congress, Washington, D.C. 20559, or by calling (202) 707-9100 (for TTY, (202) 707-6737). Use a PA ("performing art") form to register music and/or lyrics or an SR ("sound recording") form for the performance and production rights in an audio recording. The forms come with instructions. Send the completed forms to the Copyright Office with a $30 registration fee and two complete copies of a published work (one copy of an unpublished work or a work published outside the U.S.) (see Section 408 and Section 409). The Copyright Office requests that manuscripts of musical works be submitted as printed copies instead of on computer disks.

A collection of unpublished works can be registered as a group on one registration form (and for one $30 fee), provided that all works in the collection are by the same author, the collection bears a single title (i.e. "The collected songs of John Doe") and all of the necessary deposit copies are enclosed [Volunteer Lawyers for the Arts, p. 27].