Discussion:
Hey all,
I run an educational project that enables kids to produce internet radio as part of their in-school curriculum. Individual broadcasts are produced in a classroom, but broadcast over the internet to a larger audience.
Many teachers and students have asked whether they can include *any* copyrighted music into their broadcasts. In the past, as our volume has been low, we haven't properly addressed the issue. Now, however, our project is growing rapidly, and it's time to address the question directly.
We have not signed up ASCAP or any other license regimes for rights, nor do we intend to do so (since our volume is so very low... still 1-2 broadcasts per month!). Under what circumstances, if any, may students use copyrighted works in their material? Is the "30 second rule" a myth?
Any responses would be very helpful...
Thanks!
Dave // Kids' Internet Radio Project,
Answer:
Many teachers and students have asked whether they can include *any* copyrighted music into their broadcasts. You can, but without the proper licenses, such a broadcast would be infringing someone's copyright.
Under what circumstances, if any, may students use copyrighted works in their material? If the use is a "fair use," they can use it -- but therein lies the problem. "Fair use" is codified in 17 USC 107 -- it's a 4-part test the court will use to determine whether or not a use is "fair." Trouble is, it's hard to tell whether or not a use is a "fair" use without getting an attorney involved, who can review all of the relevant facts and advise you accordingly. Educational use of a copyrighted work tends to tip the scales towards a fair use, but other factors -- the impact on the commerical value of the work, and the "amount" of the work used, can tip the scales in the other direction.
Further, "fair use" is not a "right" that can be asserted; rather, it is a defense to a charge of infringement. In other words, you cannot keep someone from suing you for infringement by arguing that your use is a "fair use" -- "fair use" is a defense that you argue once you've already been sued -- it's an "excuse" for infringement. Because it is a defense, and not a right, it's not such a good thing to rely unless you absolutely have to...
Is the "30 second rule" a myth? It is. It's kind of a shorthand for "fair use" -- one of the factors in determining "fair use" is how much of the work is used. If you use the whole work, it's unlikely to be a fair use ever, but if you use a small part of a work, its more likely that a court could find such a use to be a fair use. That's where the "30-second rule" came into being.
Unfortunately, though, there is no such "bright line" rule as to how much use is "too much." In some cases, use of the whole work may be a "fair use," while, on the other hand, a very small part of a work may not be a fair use, if that small part is an "essential" part of the work. There is a famous case (name escapes me right now) where someone used a 200-word (or thereabouts) passage from a several-hundred-page book -- the court held that the use was not a fair use, in part because that particular passage was key to the whole book.
Further limiting fair use is the fact that the courts have consistently held that, of the 4 factors, by the most important factor is the impact on the commercial value of the work. The factors are not equally weighted, in other words.
Any responses would be very helpful... Your best bet is to simply obtain a license from ASCAP or BMI and do it legally, or try to avoid using copyrighted works at all. Relying on fair use to save you is not the best strategy.
And just as an aside, although "educational uses" may tend to make a use more of a "fair use" than if the use were commercial, under copyright law there are no general exceptions for educational uses of copyrighted works -- educational uses do not get a "free pass." Educational uses do get some leeway in very specific cases -- under fair use, for example, plus there are some different rules for educational uses of nondramatic sound recordings (speeches, etc.) and pictoral works, etc. -- but generally educational uses have to follow the same rules as everyone else. Librarires, on the other hand, tend to get more leeway, but not accross the board, only in certain areas..
Answer:
Thanks for your lengthy reply and explanation! In the end, I agree that it's best to avoid the issue totally. Instead, I think I'll try to steer participants toward creative commons - licensed works, as 1) there's quite a lot of decent work out there and 2) there's no cost.
On the other hand, if things (really) pick up on the site and we're given some funding, perhaps a broadcast license would be worth to explore more deeply. However, at the moment, we're funded out of my (graduate student) shallow pocket... =>
Again, thanks for your wonderful explanation!
-Dave