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Copyright for Faculty

Copyright Information for Faculty

Disclaimer

The examples below are intended to model the thought processes instructors should engage in when determining whether an intended use is fair given the particular facts at hand. A final determination of fair use can only be made in a court of law. This guide is not intended as legal advice. If you have legal concerns about a particular use at Spartanburg Community College, please contact the College Copyright Officer.

Tips for using sound recordings in online education

To best position yourself to assert a fair use argument when using sound recordings, consider doing the following:

  • Link to the sound recording if possible rather than making an electronic copy available to students. Linking to materials is ordinarily not a violation of copyright but rather a technological instruction for locating materials.
  • If copying a sound recording, do not use any more of the recording than the amount needed to serve your purpose.
  • Avoid copying sound recordings from materials created and marketed primarily for use in courses such as the one at hand (e.g. from a textbook, workbook, or other instructional materials designed for the course). Use of more than a brief excerpt from such works on digital networks is unlikely to be transformative and therefore unlikely to be a fair use.
  • Make sure that the sound recording serves a pedagological purpose; do not use as entertainment.
  • Place the sound recording in the context of the course, explaining why it was chosen and what it was intended to illustrate. Recontextualize the sound recording when appropriate through the addition of background readings, study questions, commentary, criticism, annotation, and student reactions.
  • Limit access to the sound recording to students enrolled in the course.
  • Use streaming or other technologies that limit students' ability to download, copy, or redistribute the material.
  • Notify students that sound recordings are being made available for teaching, study, and research only.
  • Provide attributions to known copyright owners of the sound recordings.

Example #1

Professor Beretsky is teaching an online course about copyright. He wants to illustrate the provision of copyright law that pertains to compulsory cover licenses of music by demonstrating how cover versions may differ noticeably from original recordings. He extracted a 30 second clip from the recording of "Little Wing" by Jimi Hendrix and then about 15 seconds of the same song by Santana featuring Joe Cocker. He inserted the sound clips into his online lecture notes for the class, which he makes available on his personal website without access restrictions. In the text surrounding each sound clip, Professor Beretsky clearly states his purpose for including the song, explaining in detail the musical differences between the two pieces and what the significance of this is in relation to compulsory licensing. It is possible for students to download the clips. Is this fair use?

Analysis

1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?

Yes, Professor Beretsky's uses are transformative. The original purpose of the music was aesthetic and to entertain; Professor Beretsky's purpose for using the sound clips was to illustrate a concept in copyright law. The critical commentary in the professor's notes that surrounds each song clip helps to establish the transformative nature of the use.

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Because Professor Lee's use is transformative and he used only a small portion of each song—the amount necessary to illustrate his point—the material taken is appropriate in kind and amount, even though the songs are creative works.

Fair use: Yes.

Note: The fact that Professor Beretsky's lecture notes are freely available on his website does not in and of itself undermine his fair use argument. However, his use is more likely to be challenged by the rightsholder than if he had used a course management system like D2L to limit access to only the students in his class. Access restrictions are not a requirement of fair use, but they demonstrate a good faith intention to limit the use of the copyrighted material to educational purposes.

Example #2

Professor Garcia teaches a survey course on American poetry with a focus on the 20th century. Most of the readings are drawn from the course textbook, The Oxford Book of American Poetry (Oxford, 2006), but she wants to supplement the required text with some additional material. She feels that it is important to hear poetry read aloud to get a full sense of its meaning and the poetic devices employed by the poet. She rips two poems from the audio CD The Voice of the Poet: Robert Frost (Random House Audio, 2003) and uploads the files on the course's D2L site for students to access. Students are able to download the files to listen to them. As a homework assignment, she asks students to first read the poems in their textbook and then to listen to the poet reading his poems. Students must then write a few paragraphs about how the experience of listening to the poems differed from reading them. Professor Garcia plans to have students discuss their experiences in the next class period. Is this fair use?

Analysis

1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?

Yes, Professor Garcia's use is transformative. The original purpose of the poems was aesthetic; Professor Garcia'spurpose is educational: to have students compare and contrast their aesthetic experiences of reading and hearing the poems. The fact that students are asked to analyze the aesthetic experience of hearing the poems being read helps establish the transformative nature of the use.

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

The fact that the poems are creative and were used in their entirety weighs against fair use. But because Professor Garcia's use was transformative, and because listening to the entire poem was necessary for the purposes of the assignment, the material taken is appropriate in kind and amount.

Fair use: Yes.

Note: Professor Garcia's case for fair use would be stronger if she employed technological measures (e.g. streaming technology) to ensure that students could not copy and redistribute the digital file that she uploaded. This would demonstrate her good faith intention to limit the use of the copyrighted material to educational purposes.

Example #3

Professor Lazarus is teaching an online course in the history of jazz. He wants his students to listen to the jazz standard "Tiger Rag" by Louis Armstrong as an example of Dixieland jazz. He copies the song from a CD of Armstrong's recordings that was released on Delta Records in 2002 and loads it onto the university's LMS, D2L. The audio recording will be available to students for the duration of the semester only. Only students registered for the course will be able to access the recordings. Is this fair use?

Analysis

A fair use analysis might not be necessary. "Tiger Rag" by Louis Armstrong is listed on a number of websites as being in the public domain. If this is the case, Professor Lazarus is free to use it without restriction.

However, determining whether a work is in the public domain with any certainty can be difficult and time-consuming. (For more information, see the "Use resources in the public domain" guide.) Furthermore, according to Hirtle, Hudson, and Kenyon, "The only sound recordings that have entered the public domain through expiration of copyright are U.S. recordings published between 1972 and 1989 without proper notice of copyright. All other sound recordings are protected" (Peter B. Hirtle, Emily Hudson, and Andrew T. Kenyon, Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums, p. 54). 

Professor Lazarus need not risk a copyright violation by uploading a version to D2L or bother with a fair use analysis. The piece is freely available online in multiple locations, for example in the Internet Archive. He can link to it.

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Content on this page is licensed under a Creative Commons Attribution 4.0 International License from the University of Rhode Island University Libraries and may have been modified to follow SCC practices.