Copyright Questions of the Month. Making a Music Anthology; Playing Music in Class

MAKING AN ANTHOLOGY

Q: A senior English teacher is comparing a scene in Hamlet from three different filmed versions. The school owns all three versions of the Hamlet videos, and we also subscribe to a movie licensing service. The teacher would like to transfer those three scenes to a single recording so he doesn’t have to keep switching out tapes in the player. Is this OK?

A: (This answer is an updated version of the answer given in the November/December 2005 issue of Library Media Connection, vol. 24, issue 3, p. 57.) What you describe is called “making an anthology.” Anthologies are not permitted in the print guidelines, which are the only copy guidelines we have other than backup copies for computer software. There is no specific writing in the law to say that anthologies are or are not permitted in video. But the off-air recordings guidelines from 1976 specifically say that one may not make anthologies of off-air excerpts.

An additional problem arises because most DVDs have some sort of protection software included that prevents simply copying, and one must use some sort of protection circumvention software to allow the content to be copied. A Register of Copyright rule allows circumvention of copy protection to create anthologies of video clips, but at first only permitted such anthologies for higher education use by media studies/film professors:

Audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.

This rule was in effect from November 27, 2006, through October 27, 2009. A later rule added a different form of copy protection and different classes of persons who could bypass the protection to access content:

Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:

1. Educational uses by college and university professors and by college and university film and media studies students;
2. Documentary filmmaking;
3. Noncommercial videos.

This rule went into effect on July 26, 2010, and remained in effect for three years. Effective in 2012, under certain circumstances K-12 teachers may also circumvent protection measures to make clip anthologies to facilitate direct instruction. Fed. Reg. vol. 77, no. 208, 65269, Oct. 26, 2012. The Rule strictly limits the circumvention to copies that require “close analysis” and “high quality source material,” such as might be used in a media studies class where students compare subtle quality differences between movies shot on video vs. those shot on film. Other uses can be accomplished through other means. So the average use for the convenience of the teacher may not be justifiable to circumvent copying protection, though screen capture technology might be sufficient to satisfy the needs of these average uses like the one your teacher proposes.

Your movie license has nothing to do with this use because it only gives you public performance rights, which you don’t need anyway since this is a curricular showing and meets all of the AV guidelines (section 110(1) of the law). It won’t cover making anthologies.

PLAYING MUSIC IN CLASS

Q: What are the copyright rules for a teacher playing music in her classroom while students are working?

A: Teachers can play the radio if they use a personal type radio. Other recorded music would depend on when the music was recorded. If the music was recorded before 1971, there is no copyright on the recording (there is on the underlying sheet music, but that’s a different situation). Anything recorded after 1971 is probably protected by a copyright in the recording (the symbol is a P in a circle, like the C in a circle for print copyright). And they can play music for direct teaching of the music, such as in music appreciation class. In a commercial context, businesses can play the radio (off air, not satellite, which is governed by license) as long as it is being received on a “home type” receiver and played on no more than four “home type” speakers. In other words, not over the PA or a commercial sound system.

Every effort is made to provide accurate, up to date information in response to copyright questions. However, this column is not intended to take the place of legal advice. For more information, consult your school district’s attorney.