Copyright Talk

Chances are you’ve never heard of the Copyright Royalty Board, but you’ll probably be hearing about it in the months to come. It was created by Congress in 2004 to handle disputes over the setting of royalty rates for various uses of copyright materials. Last Friday it issued a ruling that has been nearly two years in the making, and has the possibility of forcing significant changes in the still fledgling internet radio industry.

Music royalties are probably the most complicated in the world of copyright. There is a copyright in the song or music composition, denoted by the phrase “written by.” Then there is a separate copyright in the recorded performance of a song, denoted by the phrase “performed by.” When a traditional radio station plays a record, they pay royalties to the writer of the song, but they traditionally have not had to pay royalties to the artist performing the song or the record company. On the other hand, commercial businesses that play recorded music do pay royalties to the record companies and performing artists, as well as to the songwriter.

Without going into all the details, when digital media took off, it was determined that playing recorded performances over the internet was not the same as playing them on the radio. Therefore, playing music over the internet required the payment of royalties. The recording industry established an organization, SoundExchange, to collect and distribute these royalties.

An initial royalty structure was set up, which recognized the non-profit nature of some public stations, and which also recognized the tiny, revenue-uncertain nature of the hundreds of internet-only radio stations that were popping up. The initial royalty agreement expired in 2005. Prior to the expiration, the question of what royalty rates would be set after that date would up before the Copyright Royalty Board. For whatever reason, the ruling was not issued until last Friday, March 2, 2007, although it’s decision covers royalties due starting in 2006. No, that’s not a typo. Internet music users just found out last week what they will have to pay for using music last year.

The decision is creating a great uproar, as reported in the LA Times, as it appears to significantly increase the cost of royalties for all digital broadcasters, no matter their size or revenue structure. Many are predicting the death of independent stations that are giving voice to thousands of independent musicians.

But I have more faith in our ingenuity. Just as doomsday was predicted for independent music in the wake of the Napster “crisis,” we have a tendency to resist change. But we nearly always rise to the occasion and create new and innovative ways to handle situations. If the people want access to lots of independent music, someone will figure out a way to provide it.

Fair use has come to be a understood as a right to use copyrighted materials in certain circumstances without first seeking permission of the copyright holder. Technically, fair use is more like a defense to a charge of illegal infringement than it is a legally granted right. Consequently, it is difficult to define fair use in advance of a factual review of the circumstances by a court. However, there have been attempts to set out guidelines to help users, particular in the educational setting, determine in advance whether a particular use will be considered “fair” or not. None of these guidelines have the force of law, and a person following these guidelines could still be found guilty of copyright infringement, although there has not yet been a case where a court has failed to followed these guidelines.

The following are links to fair use guidelines created by a variety of committees, organizations, and consortiums, covering various types of media.

• Classroom Photocopying
• Uses of Music
• Off-Air recording of Television Broadcasts
• ALA Guidelines for Classroom, Research and Reserves Uses
• ALA Guidelines for Videotapes and Software
• Software Uses Electronic Reserves
• Interlibrary Loans
• Conference on Fair Use Report
o Digital Images
o Distance Learning
o Multimedia Development

While these guidelines can be helpful in many situations, whenever possible you should always seek permission from the copyright holder rather than relying on any guidelines.

The doctrine of fair use developed slowly over time, and was not an official part of the written copyright law until 1978, the effective date of the 1976 Copyright Law revisions.

It is difficult to apply with a black and white rule in part because there are so many different types of material covered by copyright laws. Generally, any expression of an original idea, fixed in a tangible medium, is protected by copyright. Some of the types of works protected are fairly simple to understand, but others are more complex, because of the requirement of both originality and expression in a fixed medium. Simply having an idea is not enough, but neither is possessing a film of an unoriginal work (and we’re not talking about bad movies, here. Those are unoriginal in a whole different way than the copyright law is talking about).

Types of things covered by copyright:
Works of Fiction
Poetry
News articles
Non-fiction books
Academic articles
Photographs
Music
Recordings
Movies: The completed motion picture may be covered by copyright, but some elements that went into the making of it may be separately covered by copyright if they otherwise meet the test of originality and expression in a fixed medium, such as the screenplay, the costumes, and the set designs.
Visual art: “The visual arts category consists of pictorial, graphic, or sculptural works, including 2-dimensional and 3-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, technical drawings, diagrams, architectural works and models.” FL-115, US Copyright Office
Computer programs: defined generally as a set of instructions intended to make the computer act a certain way.
Recipes: A list of ingredients as in recipes, formulas, compounds or prescriptions are not subject to copyright protection. “However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a combination of recipes, as in a cookbook, there may be a basis for copyright protection.” FL-122, US Copyright Office
Choreography: The choreography must be presented in a fixed medium of expression. There is a great article on this fascinating topic here.
Games : Games themselves are generally not covered by copyright, including the name, the play method, and any layout. Since copyright protection does not extend to any idea, system, method, device, or trademark material involved in the development, merchandising, or playing of a game, nothing will prevent another person from creating and selling a similar game. However, some material prepared for the game, such as written descriptions of the rules, or the art and material on the gameboard or box, may be covered by copyright.

Architectural Works: An original design of a building made or constructed since 1990 and embodied in any tangible medium of expression, including a building, architectural plans, or drawings. “The term building means structures that are habitable by humans and intended to be both permanent and stationary, such as houses and office buildings, and other permanent and stationary structures designed for human occupancy, including but not limited to churches, museums, gazebos, and garden pavilions.” Bridges, highway designs, mobile homes, boats and similar are not protected by copyright.

Anyone that works with copyright is aware of a concept called “fair use” that allows the reproduction of some portion of a copyrighted work without infringing on the right of the copyright owner to control the work.

It is also my opinion that nearly everyone who is aware of the concept of “fair use” also misunderstands it. So we’re going to discuss fair use all this week.

First and foremost, “fair use” does not give a general entitlement to use copyrighted works. In a very few situations where use of a particular, specific work must be made, as in when a review of the work is being given, there is an entitlement to reproduce reasonable portions of the work in order to illustrate critical points. But in most – as in most – cases, the phrase “fair use” comes up only because a person could not or did not get actual permission to use the selected portion of the copyrighted work.

Anytime anyone finds themselves wanting to use any portion of a copyrighted work, their first thought should be, “let me get in touch with the author/artist and get permission.” Especially in this computer age, finding and communicating with copyright holders is generally pretty easy. Seeking permission involves nothing more than an email or letter to the author, artist, or publisher, describing what you want to use and how you want to use it. Thank them for their consideration, and then sit back and wait for the response.

The response will be one of these things:
1. No response
2. A request for more information
3. A no
4. A no, unless you pay some amount of compensation ( you should never be offended if someone wants to be paid for their work, just decide if you want to buy or not)
5. A yes
6. A yes, with specific conditions (ex., be sure to include copyright notice, or only use up to a certain point)

Response 1, 3, or 4 will require you to either find a different work to use, or to make a very deliberate determination of whether you think your proposed use is legally defensible under the “fair use” doctrine, enough so that you are willing to use the work anyway and be prepared to defend yourself from an infringement suit.

Response 5 or 6 gets you what you want, without having to worry about whether your use is “fair” or not.

And what is a “fair use?” The Copyright statute sets out four factors to consider:
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
There is no black and white rule for what constitutes “fair use.” It is a determination dependent on the individual work and the use being made of it.

Let me repeat: There is no black and white rule for what constitutes “fair use.” It is a complicated determination that depends on what kind of work it is, who is using it, how they are using it, and in many cases the question whether permission could have been sought or not.

So rule number one in “fair use” doctrine is, unless you are doing a review, try and get permission to use a work rather than talking yourself into why it’s okay to use it without permission. In fact, writing to authors and artists and musicians is actually very cool networking opportunity. Most of these folks are much more accessible than you’d think, and love to hear that people have actually used their material.

Tomorrow: different types of media and how that affects fair use determinations

Earlier this week a bill was introduced into Congress that purports to clarify exceptions to the Digital Millenium Copyright Act (DMCA) that apply to fair use of digital media. Called the FAIR USE act, a press release on the sponsor’s website (Rep. Rick Boucher) states that the bill is designed to rebalance the rights of copyright owners and the rights of those who use copyrighted material, a balance he feels was thrown off by the DMCA.

Interestingly, this bill, which the sponsor says is intended primarily to benefit personal, home users of digital media, is officially titled the Freedom And Innovation Revitalizing U.S. Entrepreneurship Act of 2007. I’m not exactly sure how personal use and entrepreneurship connect, except that it makes the acronym FAIR USE, so maybe there’s nothing to read into the title other than that politicians will do anything for a catchy title.

Anyway, as of this posting, the text of the bill was not yet available due to a backup in the Government Printing Office, but Boucher believes he has made changes to the proposed bill that will satisfy some specific concerns raised by copyright owners when the bill was introduced in the previous two congressional sessions. A number of consumer groups have already registered support for the bill. We’ll have to wait and see what the recording and publishing industry groups say about it.

Although the last ten years or so has seen a lot of legislative and legal activity on copyright issues due to the explosion of new digital technology that has made copying and storing vast amounts of material incredibly easy, it’s important to keep all this in perspective. It’s important to address questions related to new technology, but the battles over how new technology intersects with copyright laws have been going on almost since the first copyright law was written. At the turn of the 19th century predictions of dire consequences were made when player piano rolls of popular music were found not to be covered by copyright laws. The earliest radio broadcasts of music performances set off strikes by orchestras who were concerned that people would no longer pay to see them perform in person. The cassette tape recorder created new hysteria, and movie producers joined the “sky is falling” brigade when video cassette recorders were introduced. Digital issues need to be addressed, but we’ll get it figured out.