University of New England

E. MUSIC

Congress endorsed the following guidelines for the educational uses of music, including: copying printed music, reproducing sound recordings, and recording student performances of copyrighted music. Negotiated by the Ad Hoc Committee on Copyright Law Revision, the Music Publishers' Association of the United States, Inc., the National Music Publishers' Association, Inc., the Music Teachers National Association, the Music Educators National Conference, and the National Association of Schools of Music, the guidelines state the minimum standards of educational fair use under Section 107 of the United States Copyright Law of 1976, as amended (Title 17, U.S. Code).

1. PERMISSIBLE USES
1. Emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.
1. For academic purposes other than performance, multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a part of the whole which would constitute a performable unit such as a section, movement or aria, but in no case more than ten percent of the whole work. The number of copies shall not exceed one copy per pupil.
2. For academic purposes other than performance, a single copy of an entire performable unit (section, movement, aria, etc.) that is, a) confirmed by the copyright proprietor to be out of print, or b) unavailable except in a larger work, may be made for a teacher solely for the purpose of his or her scholarly research or in preparation to teach a class.
2. Printed copies which have been purchased may be edited or simplified provided that the fundamental character of the work is not distorted or the lyrics, if any, altered, or lyrics added if none exist.
3. A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or individual teacher.
4. A single copy of a sound recording (such as a tape, disk, or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher. (This pertains only to the copyright of the music itself and not to any copyright which may exist in the sound recording.)
2. PROHIBITIONS
1. Copying to create or replace or substitute for anthologies, compilations or collective works.
2. Copying of or from works intended to be "consumable" in the course of study or of teaching such as workbooks, exercises, standardized tests and answer sheets and like material.
3. Copying for the purpose of performance, except as in I(A) above.
4. Copying for the purpose of substituting for the purchase of music, except as in I(A) and I(B) above.
5. Copying without inclusion of the copyright notice which appears on the printed copy. 24.

F. MUSICAL, DRAMATIC, NONDRAMATIC PERFORMANCES

The public performance of a musical, drama, or nondramatic work or the performance of a videocassette, sound recording, or radio broadcast, may be a copyright infringement, unless a license has been granted to perform. Certain public performances in nonprofit educational institutions, however, are exempted under Section 110 of the United States Copyright Law of 1976, as amended (Title 17, U.S. Code):

1. performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;
2. performance of a nondramatic literary or musical work or display of a work, by or in the course of transmission, if:
1. the performance or display is a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution, and
2. the performance or display is directly related and of material assistance to the teaching content of the transmission, and
3. the transmission is made primarily for
1. reception in classrooms or similar places normally devoted to instruction, or
2. reception by persons to whom the transmission is directed because their disabilities or other special circumstances prevent their attendance in classrooms or similar places normally devoted to instruction, or
3. reception by officers or employees of governmental bodies as part of their official duties or employment;
3. performance of a nondramatic literary work or musical work or of a dramatic-musical work of a religious nature in the course of services at a place of worship or religious assembly.
4. performance of a nondramatic literary or musical work otherwise than in a transmission to the public, 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:
1. there is no direct or indirect admission charge, or
2. 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 under the following conditions:
1. the notice shall be in writing and signed by the coypright owner or such owner's duly authorized agent, and
2. the notice shall be served on the person responsible for the performance at least seven days before the date of the performance, and shall state the reasons for the objection, and
3. the notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation. 25.

G. PRINTED MATERIALS

The fair use doctrine, incorporated as Section 107 into the United States Copyright Law of 1976, as amended (Title 17, U.S. Code) permits under certain conditions the copying of copyrighted material. In an attempt to clarify interpretation of fair use, Congress endorsed the following guidelines, negotiated by the Association of American Publishers, Inc. and the Authors League of America which state the minimum standards of educational fair use for photocopying printed materials under Section 107 of the Copyright Act of 1976, Title 17, U.S. Code:

AGREEMENT ON GUIDELINES FOR CLASSROOM COPYING IN NOT-FOR-PROFIT EDUCATIONAL INSTITUTIONS WITH RESPECT TO BOOKS AND PERIODICALS

GUIDELINES

1. Single Copying for Teachers: A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:
1. A chapter from a book;
2. An article from a periodical or newspaper;
3. A short story, short essay, or short poem, whether or not from a collective work;
4. A chart, graph, diagram, drawing, cartoon, or picture from a book, periodical, or newspaper.
2. Multiple Copies for Classroom Use: Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that:
1. The copying meets the tests of brevity and spontaneity as defined below; and
2. Meets the cumulative effect test as defined below; and
3. Each copy includes a notice of copyright.
Brevity:
1. Poetry: A complete poem if less than 250 words and if printed on not more than two pages, or, From a longer poem, an excerpt of not more than 250 words.
2. Prose: Either a complete article, story, or essay of less than 2,500 words, or, an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words. [Each of the numerical limits stated in "1" and "2" above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.]
3. Illustration: One chart, graph, diagram, drawing, cartoon, or picture per book or per periodical issue
4. "Special" works: Certain works in poetry, prose, or in "poetic prose" which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Paragraph "2" above notwithstanding, such "special works" may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof, may be reproduced.
Spontaneity:
1. The copying is at the instance and inspiration of the individual teacher, and
2. The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.
Cumulative Effect:
1. The copying of the material is for only one course in the school in which the copies are made.
2. Not more than one short poem, article, story, essay, or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.
3. There shall not be more than nine instances of such multiple copying for one course during one class term. [The limitations stated in "2" and "3" above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.]
3. Prohibitions as to I and II Above Notwithstanding any of the above, the following shall be prohibited:
1. Copying shall not be used to create or to replace or substitute for anthologies, compilations, or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or reproduced and used separately.
2. There shall be no copying of or from works intended to be "consumable" in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets, and answer sheets and like consumable material.
3. Copying shall not:
1. substitute for the purchase of books, publishers' reprints or periodicals;
2. be directed by higher authority;
3. be repeated with respect to the same item by the same teacher from term to term;
4. No charge shall be made to the student beyond the actual cost of the photocopying.
Agreed March 19, 1976 Ad Hoc Committee on Copyright Law Revision: by Sheldon Elliott Steinbach Authors League of America: by Irwin Karp, Counsel Association of American Publishers, Inc.: by Alexander C. Hoffman 26.

1. COPY CENTERS

The copyright law applies to all forms of photocopying, whether it is undertaken at a commercial copy center, at the University's Copy Center, or at a self-serve photocopy machine. 27. Recent developments in copyright law provide the basis for potential legal claims against the University with respect to the reproduction of certain printed materials by the Copy Center, e.g., chapters, articles, and excerpts from books or journals, compiled into "packets" made available to students for purchase. The Kinko's case (Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 S.D.N.Y. 1991) casts into doubt whether such copying activities at university copy centers qualify under the fair use exception. Kinko's operates a chain of copy centers throughout the U.S., usually located near universities and colleges. Publishers complained that Kinko's prepared collections of excerpts from copyrighted books at the request of faculty at nearby campuses. Kinko's copied the excerpts, assembled them into "course packets," and sold them to students in the requesting faculty's class at a price that included a reasonable profit. Kinko's did not seek or obtain permission to copy any of the copyrighted material. Kinko's defended the practice as, among other things, a fair use. The court analyzed Kinko's copying under Section 107 and under the Guidelines and concluded that the use was not fair, enjoined Kinko's from continuing the practice, and ordered Kinko's to pay $510,000 in statutory damages and attorney's fees and costs. The parties settled the litigation without appeal; Kinko's ultimately paid the publishers $1,875,000. 28.

The University of New England policy permits copying for classroom use consistent with copyright law and the fair use Guidelines (p. 18-20). Faculty and staff have the ultimate responsibility to adhere to the law and to produce written documentation of permission granted if copying exceeds fair use. If in doubt, request permission to copy from the copyright owner. (See Permissions, p. 22, and University of New England Course Packet and Photocopying Handbook, Appendix.) 

2. PERMISSIONS:

It is the policy of the University of New England to adhere to the requirements of the United States Copyright Law of 1976, as amended (Title 17, U.S. Code), and to secure permission to copy copyrighted materials when such copying exceeds fair use.

A copyright notice is not required for copyright protection of works published on or after March 1, 1989. Most works (except those authored by the U.S. government) should be presumed to be copyright protected unless further information from the copyright holder or express notice reveals that the copyright holder intends the work to be in the public domain. With regard to works published prior to March 1, 1989, a copyright notice generally is required in order for them to be copyright protected. 29.

When the photocopying of copyrighted material is not within the Guidelines, (p. 18-20) University faculty and staff members should request permission. Every article or chapter assembled into a "course packet," if derived from copyrighted material, requires permission, either from the copyright owner (usually the publisher) or payment of a fee through an authorized permissions agency such as CAPCO. Providing complete, accurate information to the copyright owner will facilitate the request. Each item in the packet also must include a notice of copyright, if present. 30. (See Sample Permission Letter in University of New England Course Packet and Photocopying Handbook, Appendix.)

3. LIBRARY RESERVES

Photocopies placed on library reserve are intended to supplement other materials assigned for a course. Library reserves function as extensions to classroom readings, therefore the "Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals" (p. 18-20) is relevant in the interpretation of fair use.

The Jack S. Ketchum Library accepts single photocopies of copyright protected chapters and articles according to the standards of the Guidelines for photocopying, i.e., not more than one article or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during a term. The same item may not be placed on reserve by the same instructor for consecutive terms without written permission from the copyright owner (see Sample Permission Letter, Appendix).

In unusual circumstances, the length or difficulty of an assignment, the number of enrolled students, or the length of time allowed for completion of the assignment, may permit multiple copies of copyright protected material. The amount of material should be reasonable in relation to the total amount of material assigned for one term of a course, taking into account the nature of the course, its subject matter and level. The effect of photocopying the material should not be detrimental to the market for the work. In general, the library should own at least one copy of the work.31.

Course packets will be accepted for library reserve only with the indication of copyright clearance or royalty payment (see University of New England Course Packet and Photocopying Handbook, Appendix.)

Photocopies are considered the property of the instructor placing them on reserve. Photocopies of copyright protected material must contain a notice of copyright as provided on the original work, if present (p. 22). Library reserve photocopies must be marked with the warning: "NOTICE: This material may be protected by copyright law (Title 17, U.S. Code)".

Special reserve restrictions apply to audiovisual materials and to computer software. See sections on films and videocassettes (p.11), and computer software (p.5).

4. INTERLIBRARY LOAN PHOTOCOPIES

Interlibrary loan is a cooperative resource sharing service between libraries. Section 108 (g)(2) of the United States Copyright Law of 1976, as amended (Title 17, U.S. Code) addresses the rights of libraries to copy or distribute copyrighted material within interlibary loan arrangements.

In 1976, Congress appointed the Commission on New Technological Uses of Copyrighted Works (CONTU) to develop guidelines for interlibrary loan photocopying affected by Section 108. The CONTU guidelines 32. restrict the aggregate quantity of photocopying the Jack S. Ketchum Library Interlibrary Loan Department can request for the University community within a calendar year, so as not to substitute copying for the purchase of or a subscription to a work. Within each calendar year, the Interlibrary Loan Department can request up to five photocopied articles from the most recent five years of a periodical title the Library does not subscribe to. Photocopied articles from such periodical titles that have reached the maximum limit of five for the calendar year may be available, for a royalty fee, through the Library's affiliation with the Copyright Clearance Center or other copyright clearance document delivery resources.

Section 108 (d)(2) requires the Interlibrary Loan Department to display prominently the following notice, and to include the same text on all interlibrary loan request forms: 33.