Inspiration for my “Ethics & Law” columns comes from many places, but by far the most reliable and interesting ideas come from readers. For example, Gary Harney, the associate director of technology for a school in Delaware, writes, “I teach a tutorial in music history. We often select portions of larger works for students to analyze. On occasion, a complete work (a Bach cantata, for instance) is included in the curriculum. In the past, the teacher has placed a copy of the needed CDs (usually parts of several) on reserve in the library, where students can listen to them.”
What Gary would like to do is also the source of his question. “It would be more convenient to burn CDs of the excerpts being studied so that students would not have to compete for the use of a few copies of multiple CDs in the library. We could also put the musical excerpts in order on the CDs. We also do not want to require students to spend $15 per CD to listen to only a couple of tracks.”
With less expensive CD-burning technology and cheap blank CDs, Gary wants to know whether he can lawfully “burn CDs that are compilations of these excerpts and, if so, what guidelines should be followed?” He adds, “Thanks for all your work in this increasingly complicated field. I will continue to read your column with great interest, especially since in the spring of 2003 I will be teaching an Ethics in Technology course here!”
Well, Gary, you have chosen one of the most complex topics in copyright law to start the new year! Section 107 of the federal copyright statute (under the Constitution, all laws regarding copyrights and patents are made by Congress) allows the “fair use” of copyrighted works, including musical recordings, for purposes such as criticism, news reporting, teaching, and research. The law specifically says that using “multiple copies for classroom use” under fair-use guidelines is not an infringement of copyright. But that does not mean an unlimited number of copies of anything.
For most elementary and secondary school classroom uses, the two fair-use elements that need to be carefully examined in the case of burning CDs for classroom use are “the nature of the copyrighted work” and “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” The first element waves a general caution flag, because creative workssuch as the performances of music that Gary’s students are studyingare sheltered more than factual materials (such as an encyclopedia) under the law. This higher level of protection means you have to be careful to limit fair use of creative works, as opposed to materials from magazines, books, and journals.
The real limitation of concern to Gary and his students is the “amount and substantiality” of the excerpts burned onto the classroom CDs.
For printed works, many libraries and universities limit classroom handouts of printed creative works to copies of short articles or poems and portions of longer works. For musical selections, the University of Texas system, which has an extensive set of internal copyright guidelines, cautions professors to limit multiple copies of excerpts of musical works to excerpts that “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 10 percent of the whole work.”
With this in mind, my “sound” advice for Gary and other teachers who want to use the low-cost CD-burner technology is to copy only excerpts (leave the longer portions or complete works in the library reserve section), have the students return their CDs after the course is finished, avoid using the same excerpts (the same CDs) over and over (you might want to use rewritable CDs), and avoid selecting more than one or two excerpts from a single performing artist or group or gleaning too much of your material from just a few master CDs or record labels.