Statement on the Copyright Law and Fair Use in Music
The Congress shall have Power... To promote the Progress of Science and useful arts, by securing for limited times to Authors and Inventors the exclusive right to their respective Writings and Discoveries. —U.S. Constitution, Article I, section 8.
The Copyright Law
The Copyright Law (U.S. Code, Title 17) was established to balance the rights of authors, composers, performers and other owners of intellectual property, with the rights of users. Many scholarly and pedagogical uses of music materials are legitimate and vital to preserve and foster creativity and to ensure transmission of cultural heritage in the United States, thus fulfilling this stated need for balance.
Section 107 of the Copyright Law allows for the "fair use" of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. Additional guidelines (H.R. Rep. No. 94-1476, and The United States Copyright Law: A Guide for Music Educators) permit multiple copies for classroom use under certain circumstances.
The following four factors, taken together, determine what constitutes fair use. The first three factors are usually important in determining the fourth.
- The purpose and character of the use, including whether it is intended for commercial or non-profit educational use. This provision permits certain duplication of library materials for the purposes of scholarship, research, and teaching in all areas of music study. Students and faculty members may make copies of protected materials for such uses, and librarians are permitted to make one copy of protected materials for a user upon the submission of a signed request with the adjoining copyright disclaimer statement. Section 107 applies to all copyrighted works. Certain specific uses not in the non-profit educational domain can also qualify under this provision, for example when a paid reviewer quotes briefly from a copyrighted literary or musical work in a review.
- The nature of the copyrighted work. In evaluating this factor, case history has taken into account whether a work is published or unpublished, factual or creative. In general, unpublished and creative works have been given more protection by the courts than published and factual ones. MLA takes the position that most tools of music learning are creative works in themselves and therefore cannot by their very nature be appropriately evaluated on the factual or creative criterion. In addition, an evaluation of fair use should acknowledge that reasonable use of unpublished sources is critical to the advancement of music research. Conversely, fair use does not apply if a copyrighted work is intended to be consumed in the course of a class assignment (such as in the case of workbooks, text books, musical exercises, etc.).
- The amount and substantiality of the portion to be copied as it relates to the work as a whole. This factor is related to the purpose of the use (no. 1 above), and is usually relevant in determining the degree of harm to the copyright owner (no. 4 below).
- The effect of the use upon the potential market for, or value of the copyrighted work. Criteria used to determine adverse market effect include (a) accessibility of the work, (b) date of its creation or publication, (c) economic life of the work, (d) price, and (e) evidence of abandonment.
Apart from fair use for individual study and research, and classroom teaching, still most troubling to music librarians is Section 108(h), which excludes music from the type of copying that librarians need to do in the course of their regular work (interlibrary loan, preservation, etc.) Section 108(f) (4), however, states that, "Nothing in this section... in any way affects the right of fair use as provided by section 107."
The Music Library Association supports the constitutional purpose of copyright: to promote the public welfare through the advancement of knowledge. Anyone has the right to make copies of library materials under the provisions defined in the fair use section of the Copyright Law. MLA urges its members to consider these four factors when developing institutional policies and educating library users about their rights and obligations under the law.
With respect to electronic media, the intention and end result, not the means of conveyance, should be the determining factors in deciding whether a specific use of an electronic copy is fair, assuming that use has satisfied all the other four factors.
The Music Library Association will continue to pursue discussions with appropriate agencies in determining how best to satisfy the law when using emerging technologies to advance music study and research.
Why MLA supports this position
Music librarians organize, provide systematic access to, and preserve, in many kinds of repositories, a wide range of resources -- manuscripts, printed music and literature, audiovisual materials, and databases -- in support of research and study. Such resources often cannot otherwise be obtained. In furthering the advancement of music scholarship, and in providing for the needs of individual and classroom study, researchers, faculty, and librarians must continue to make use of copyrighted materials to the fullest extent allowable under the Copyright Law, or else lose their right of fair use by failing to exercise and defend it.
- In preparing this statement, MLA reviewed similar policies by other library associations. In particular, it acknowledges the position statement adopted by the Medical Library Association. The authors also consulted a number of books on copyright, including Libraries and Copyright: A guide to Copyright Law in the 1990's, by Laura N. Gasaway and Sarah K. Wiant (Washington, DC: Special Libraries Association, 1992).
- In 1992, Congress added a final paragraph to the end of Section 107: "The fact that a work is unpublished shall not in itself bar a finding of fair use if such finding is made upon consideration of all the factors set forth in paragraphs (1) and (4).
- The Nature of Copyright: A Law of Users' Rights, by L.R. Patterson and S.W. Lindbert (Athens: University of Georgia Press, 1991).
Prepared by Bonna Boettcher, Mary Wallace Davidson, David Farneth. Approved by the Board of Directors of the Music Library Association, February 1996.