This course provides an engaging and methodical insight into the past and present cultural and commercial music industry developments, directions, and trends. It will equip the students with the knowledge and skills necessary to appreciate, understand and more productively participate in today’s music industry field.
Regulations: Fair Use Doctrine, Sampling, and Creative Commons (Part 1 of 5)
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Today’s Music Industry
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CD, MP3, and Online Marketplace
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Darko VelichkovskiMusic Industry Program Director
Music Industry
The Copyright Act provides certain exceptions to the copyright protection of the original
works, including music, and defines the parameters within which copyrighted works can be used
without a permission or licensing by the copyright owner. Such use of the copyrighted works is
referred to as “fair use”. Fair use is thus not an affirmative right, but a defense
against the claim of the copyright infringement, based on the Copyright Act’s provisions
regarding the issue.
Section 107 of the Copyright Act addresses and defines the parameters of the fair use,
starting with it’s opening statement, which is the basic doctrine of fair use. It says:
“Notwithstanding the provisions of section 106 (section 106 being the section on the
exclusive rights in copyrighted works), the fair use of a copyrighted work, including
such use by reproduction in copies or phonorecords or by any other means specified by that section,
for purposes such as criticism, comment, news reporting, teaching (including multiple copies
for classroom use), scholarship, or research, is not an infringement of copyright.”
The section then further specifies the issue, and establishes four basic criteria to be
used in determining if certain use of the copyrighted material, as defined in the opening
statement, might be considered a fair use. Those four criteria are:
1) the purpose and character of the use, including whether such use is of a commercial nature
or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3)
the 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.
Given the infinite possibilities and varieties of potential particular cases involving the
question of fair use, section 107 was positioned as a broad guideline in determining the issue,
and not as an iron clad, narrow boundary. The courts are thus free to adapt the provision
to any copyright use situation at hand, on case-by-case basis, and make their own particular
ruling. Therefore, no matter how closely aligned with the Copyright Act’s fair use provision
one thinks a certain use is, it will always be the courts prerogative to determine the
validity of the fair use defense, based on the circumstances and its own interpretation
of the provision. There are no hard lines, and very few clear-cut cases.
Meaning, if in doubt, that using certain copyrighted music in a particular way without the permission,
is fair use, don’t do it. If the copyright infringement is claimed, you might lose in
the courts, regardless of how close you think your use came to the fair use provisions of
the Act. As I said, there are no hard lines, and no guarantees, except in very few cases.
On the other hand, if not in doubt, still think twice, three times, ten times about
it, before you do it, as the claim of the copyright infringement is a serious charge,
and may considerably affect your business and the bottom line.
OK, now that I gave you a due warning, and like a caring parent pointed out to you how
dangerous it is to play with fire, or associate with questionable characters, let’s look
at the fair use issue closer, and see what are its implications in the music industry.
As we have seen, the fair use provision lists criticism, comment, news reporting, teaching,
scholarship, and research as the areas where fair use may apply. So does that mean that
any time we use a copyrighted work in the course of one of those activities we don’t
need permission by the copyright owner? No. The provision uses the term “for the purposes”
of those activities, meaning that the use has to be directly related to the purpose
of an activity in order to be considered fair use.
So for instance, using a copyrighted song as a background music for some You Tube or
TV news report or commentary, would not be considered fair use. Using a copyrighted song
as an illustration along the news report or a commentary regarding the song itself, might
be considered fair use. And I say “might”, because we would still have to consider those
four criteria for fair use determination that we listed earlier, remember? You see, the
two parts of the fair use provision, the areas of use and the criteria, act as two filters,
one coarse and one fine. The use needs to go through both in order to even be considered
as a candidate for fair use.
The four criteria of fair use each have its own weight and reason why they are included
in the list. First, the “purpose and character of the use” criteria aims to identify the
precise circumstances and parameters of the activity, in the course of which the copyrighted
music is used, and its results. Meaning, why exactly did the use occur, and if, for instance,
such use of a copyrighted song has created a transformative type of a music derivative.
Was something decidedly new created through the use, transformative use, rather than imitative,
is more likely to be considered fair use. Second, the “nature of the copyrighted work”
criteria is meant to discern if the composition or a recording used is appropriate for the
activity in which it is used, and if the work’s character fits a fair use claim in such activity.
For instance, if the original recording was created as an instructional tool to be used
in a classroom, it could not be copied and used by a teacher without a permission or
a license by the copyright owner as fair use; because the sole purpose of the work is of
the instructional nature.
Third, the criteria regarding the “amount and substantiality of the portion used”,
is there to examine how much of a composition or a recording is used in relation to its
whole, for the purpose of the use. The use of the smaller portions of the work are naturally
considered more favorably by the courts than the use of the larger ones; and the use of
the entire work is virtually never considered fair use. By the way, keep in mind that all
of this applies only for the areas of use listed in the fair use provision - criticism,
comment, news reporting, and so on - and not for other types of uses. For example, sampling
in the context of a commercial music industry project, no matter how small of a portion
of a copyrighted work might be used, is very unlikely to be considered fair use. We’ll
talk about that issue separately a bit later in this section. And lastly, the “effect
of the use on the potential market” criteria aims to discern the influence of the use of
the copyrighted work on the work’s financial potential. For instance, to use the example
we mentioned earlier, of the instructional recording. The copying and the use of such
recording in the classroom, without the permission of the copyright owner, would under this criteria
not fit the fair use claim, either. Just like it didn’t under the “nature of the work”
criteria we talked about earlier. Because the work was created for the education market,
using it in a classroom without a permission or a license payment would adversely affect
its value in that market.
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