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Copyright and the university community

Video, audio and radio

Many activities that take place on University campuses involve the "performance" of videotapes and audiotapes. Showing a purchased or rented videotape or playing a record, tape, or compact disc is considered a "performance" of the copyrighted work. These activities may be infringements of the copyright owner's exclusive rights in those cases where such performances are public because the owner enjoys the exclusive right to perform the copyrighted work publicly and to authorize others to do the same.1 Private performances, however, are not an infringement.

Similarly, a public performance of a radio broadcast of a musical composition by means of a live retransmission or a delayed audiotape transmission is generally not permitted without permission from the owners of copyright in the musical composition. This permission is normally obtained from the "performance rights" groups, ASCAP, BMI, SESAC, etc., but may be obtained directly from the copyright owner as well.

The exclusive performance right of the copyright owner is not unlimited. There are several exemptions that may apply to activities involving such public performances. Following is a discussion of four of these exemptions that are likely to be relevant to the University community.

Limitations on the performance right: The teaching, educational broadcasting and non-profit exemptions

Since private performances do not infringe the exclusive rights of the copyright owner, one must first determine whether a proposed performance would be considered a public performance.

A. Is the performance public?

Section 101 of the copyright law says that a performance is public if it is in a public place or if it is in any place if "a substantial number of persons outside of a normal circle of a family and its acquaintances" is gathered there.2 Thus, the factors to consider in determining whether a performance is public include whether the place is public and the size and composition of the audience. For example, if the place where the performance takes place is a public place (open to the public), how many and what kind of people attend is not important. By definition it is a public performance. Where the place of performance is not open to the public (where the public can be excluded), the size and composition of the audience will be determinative.3

B. Is there an applicable exemption?

Even if a proposed performance might be considered a public performance, there may not be an infringement because the copyright law places further limits upon the performance right of copyright owners in Sections 110(1), (2) and (4).4 Section 110(1) says that performances that take place in the face-to-face teaching activities of a nonprofit educational institution are not an infringement of the copyright owner's right. Section 110(2) exempts certain nonprofit educational transmissions (broadcasts) of performances of non-dramatic literary and musical works. Section 110(4) exempts other nonprofit performances of non-dramatic literary or musical works under certain rather strict conditions. Movies and videotapes of movies do not fit into the category of non-dramatic works; they are dramatic audiovisual works and may not be publicly performed under either of the last two exemptions.5

Following are the elements of each exemption that must be satisfied in order for an otherwise public performance to be exempt:

1. Section 110(1) (Teaching activities of a nonprofie educational institution):

a. The performance must be performed by the instructor or pupil(s) (not by a performance artist);

b. The instructor and pupil(s) must be in the same place (transmissions by television, etc., do not qualify here although they may qualify under 110(2) below);

c. The activity must be a teaching activity and not recreation or entertainment;

d. The activity must be put on by a nonprofit educational institution;

e. The activity must take place in a classroom or other area used as a classroom for systematic instructional activity; and

f. In the case of performance of a videotape or movie, the copy of the work performed must have been lawfully made. For example, one cannot show an archival copy of a videotape since it would not have been made in accordance with the provisions of the copyright law (see Questions and Answers, below).

2. Section 110(2) (Nonprofit educational broadcasts of non-dramatic literary or musical w orks):

a. The broadcast must be a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution;

b. The performance must be directly related and of material assistance to the subject matter being taught in the broadcast; and

c. The broadcast must be made primarily for reception in the school or governmental classroom or by persons who because of special circumstances are not able to get to a classroom.

3. Section 110(4) (Nonprofit public performances of non-dramatic literary or musical works):

a. The performance must not be a transmission to the public (a television or radio broadcast);

b. The performance must be without any purpose of direct or indirect commercial advantage (no profit-making purpose);

c. The performance must be without any payment of a fee or compensation to performers, promoters, or organizers for the performance; and

d. There must be no direct or indirect admission charge, or if there is one, 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. . . ."

This exemption is further subject to a right in the copyright owner to object to a performance for which there is charged an admission price by serving notice on the person responsible for the performance at least seven (7) days prior to the performance. This right allows copyright owners to prevent their works from being used to support causes to which they object for any reason.

There is, however, no effective way for many copyright owners to assert this right, except with respect to copyrighted musical compositions. The "performing rights societies" (ASCAP, SESAC, BMI, etc.) have the right to make blanket objections on behalf of their clients, but there is no similar organization for copyright owners of nondramatic literary works embodied in other media like videotapes.

In summary, to determine whether one may perform an audio or videotape or a record or compact disc without permission of the copyright owner, the first question is whether the performance of the videotape is a public performance. If the performance is a public performance, it may nonetheless be permissible as a teaching activity of a nonprofit educational institution, as a nonprofit educational broadcast of a non-dramatic literary or musical work, or as an otherwise allowed nonprofit public performance of a non-dramatic literary or musical work. If the activity does not qualify for exemption under any of those sections of the law, request the permission of the copyright owner before performing the work.6

Limitations on the performance right: The incidental public reception exemption (The jambox exemption)

Playing a radio loud enough for others to hear constitutes a performance of the musical compositions broadcast over the air waves. Whether playing such a radio broadcast might be a public performance requires the same analysis described above for audio and videotape performances.

There is, however, a different exemption in Section 110 that may make such a performance permissible. Section 110(5) allows the use in public of what is called a "single receiving apparatus of a kind commonly used in private homes."7 What qualifies as such a home radio receiver has been argued in the courts; nevertheless it is probably safe to say that if the receiver is not connected to lots of speakers by yards and yards of wires, but is just a "jambox" being played, for example, in an office, in the recreation room while people exercise (even if there is a fee charged for such an exercise class), or by a person walking down the street, the exemption would apply and the otherwise public performance would not be infringing.

Frequently asked questions

1. May I make a copy of my videotapes for safekeeping?

Many people believe that it is permissible to make a backup copy of a videotape or audiotape, especially where the tape will be used frequently, so that if it is damaged, destroyed, or lost, the backup will be available to take its place. For example, a lending library may wish to make copies of its video and audiotapes routinely and to lend out the copy or the original, retaining the other for backup purposes. In fact, only computer programs may be copied for backup purposes. This practice with audio and videotapes is a violation of the copyright law.8

2. Do we need a license from the performance rights groups to play radio music over our telephone system while callers are on hold?

Yes. Such a broadcast would be considered "open to the public" and would not fall under any exemption.

3. We show movies about once a month in a conference room for the entertainment of our employees. We do not charge an admission price; we serve popcorn; we advertise the event in an in-house newsletter; and about 20 to 30 people come each month. Do we need permission?

Yes. Even though the performance is in a place not open to the public, the number of people you indicate is "a substantial number of persons outside of a normal circle of a family and its acquaintances." Therefore, the performance is a public performance.

The face-to-face teaching activities exemption does not apply because this is not a teaching activity; the educational broadcast and the nonprofit public performance exemptions do not apply because a movie is a dramatic audiovisual work and these two exemptions only apply to non-dramatic literary or musical works. As a result, the performance infringes the copyright owner's rights unless permission is obtained.

Footnotes:

1 17 U.S.C. Section 106. There is a separate copyright interest in the sound recording of a performance, as distinct from the underlying musical composition or other copyrighted work; however, no performance right attaches to the copyright in a sound recording. In effect, the public performance (as defined by the statute and explained infra) of a record, compact disc, or audiotape of a musical composition only infringes the performance rights of the owner of copyright in the composition itself.

2 17 U.S.C. Section 101.

3 Columbia Pictures Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154 (3d Cir. 1984).

4 17 U.S.C. Sections 110(1), 110(2), 110(4).

5 17 U.S.C. Sections 110(2), 110(4).

6 There are several other exemptions available under the law but for the purposes of this article and the University community these three are the most important and most likely to be relevant.

7 17 U.S.C. Section 110(5).

8 Section 108 (17 U.S.C. Section 108) allows libraries to make a copy "solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost or stolen, if the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price." This right of reproduction does not permit the making of backups.

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