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Copyright at Kalamazoo College

DUPLICATION OF NON-PRINT MEDIA

Guidelines for Off-Air Recording

The guidelines for off-air recording of broadcast programming for educational purposes apply only to off-air recordings by non-profit educational institutions (Congressional Record, October 14, 1981, pp. E 4750-E 4752).

  1. A broadcast program may be recorded off-air simultaneously with broadcast transmission (including simultaneous cable retransmission) and retained by a non-profit educational institution for a period not to exceed the first forty-five (45) consecutive calendar days after date of recording. Upon conclusion of such retention period, all off-air recordings must be erased or destroyed immediately. "Broadcast programs" are television programs transmitted by television stations for reception by the general public without charge.
  2. Off-air recording may be used once by individual teachers in the course of relevant teaching activities, and repeated once only when instructional reinforcement is necessary, in classrooms and similar places devoted to instruction within a single building, cluster or campus, as well as the homes of students receiving formalized home instruction, during the first ten (10) consecutive school days in the forty-five (45) calendar day retention period. "School days" are school session days -- not counting weekends, holidays, vacations, examination periods, or other scheduled interruptions -- within the forty-five (45) calendar day retention period.
  3. Off-air recordings may be made only at the request of and used by individual teachers, and may not be regularly recorded in anticipation of requests. No broadcast program may be recorded off-air more than once at the request of the same teacher, regardless of the number of times the program may be broadcast.
  4. A limited number of copies may be reproduced from each off-air recording to meet the legitimate needs of teachers under these guidelines. Each such additional copy shall be subject to all provisions governing the original recording.
  5. After the first ten (10) consecutive school days, off-air recordings may be used up to the end of the forty-five (45) calendar day retention period only for teacher evaluation purposes, i.e., to determine whether or not to include the broadcast program in the teaching curriculum, and may not be used by the recording institution for student exhibition or any other non-evaluation purpose without authorization.
  6. Off-air recordings need not be used in their entirety, but the recorded programs may not be altered from their original content. Off-air recordings may not be physically or electronically combined or merged to constitute teaching anthologies or compilations.
  7. All copies of off-air recordings must include the copyright notice on the broadcast program as recorded.
  8. Education institutions are expected to establish appropriate control procedures to maintain the integrity of these guidelines.

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Permissible Uses of Pre-Recorded Videotapes
(Home Videotape Rentals)

Teachers and pupils are exempt under Title 17, Section 110 (1) to perform copyrighted works in face-to-face instruction, with the following limitations:

  1. The performance is part of a systematic course of instruction and not for entertainment, recreation, or cultural value.
  2. Attendance at performances is limited to pupils enrolled in the course, and to their teacher(s).
  3. The performance is given in a classroom or a similar place devoted to instruction, including libraries and gymnasiums, so long as the attendance limitation (Item B, above) is satisfied.
  4. The performance is given from a legitimately-made copy, which was not sold under a license or contract restricting school performances.

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Proprietors' Rights

The following section is quoted from “Chapter 1: Proprietors’ Rights” in Using Copyrighted Videocassettes in Classrooms and Libraries by Dr. Jerome K. Miller, 1984:

Statutory copyright law was created 270 years ago to protect authors' rights. It has been revised many times since, but its purpose remains essentially unchanged. The Copyright Revision Act of 1976 implemented this purpose by giving authors substantial control over various uses of their creative works:

Sect. 106. Exclusive rights in copyrighted works

Subject to sections 107 through 118, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
  1. to reproduce the copyrighted work in copies or phonorecords;
  2. to prepare derivative works based upon the copyrighted work;
  3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and
  5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly (Copyright Act, Sect. 106).

The first right restricts printing and other reproductions.

The second right gives proprietors control over derivative works, such as new editions or books, films based on books, and clothing displaying cartoon characters.

The third right, the "right of first publication," gives proprietors the right to keep products off the market. However, once a work legitimately enters the market--through sale, lease, or lending--the proprietors loose this right.

The fourth right enables proprietors to maintain artistic control and secure income from performances.

The fifth right has a similar effect on displays of copyrighted works.

The new law substantially revised the right to regulate performances and displays. It removed the for-profit-performance-in-public limitation in the old law and replaced it with the fourth and fifth subsections described above. Although the new law enhanced the proprietors' right to control performances and displays, the law authorized certain public performances and displays without permission or fees:
Section. 110. Limitations on exclusive rights: Exemptions of certain performances and displays:
  Notwithstanding the provisions of section 106, the following are not infringements of copyright: .
    4. performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performances, promoters, or organizers, if--
      a. there is no direct or indirect admission charge; or
      b. 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...(Copyright Act, Sect. 110).

 

This is the legal basis for most free performances, such as storytelling in libraries and open-air performances by municipal bands. It also authorizes benefit performances at which performers and organizers contribute their services and the income after expenses is contributed to a non-profit organization.

Although, Section 110(4) authorizes a broad range of users' rights, it imposes three key limitations in: "nondramatic," literary (works)," and "musical works." Musical, dramatic, and nondramatic are not defined in the law, but they are clear enough without further comment. The restriction on performing videocassettes appears in the innocuous phrase, "literary work," as it is defined in the law:

"Literary works" are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, films, tapes, or cards, in which they are embodied (Copyright Act, Sect. 101).

The limitation is in the first eight words: "literary works are works, other than audiovisual works ..." Because of this clause, free and benefit performances are limited to nondramatic literary or musical works--and audiovisual works are specifically excluded from this category--so they are excluded from the benefits of Section 110(4). Some audiovisual works might be regarded as musical works (a novel interpretation), but that offers little encouragement, as phonograph records and audiotapes are in a separate category, called phonorecords. Should anyone doubt videocassettes are audiovisual works, that term also is defined in the copyright law:

"Audiovisual works" are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied (Copyright Act, Sect. 101).
It appears, then, the Copyright Revision Act of 1976 intentionally or accidentally prohibits performances of audiovisual works, except under the educational exemption, the home-use exemption, or with the proprietor's permission.

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Reproduction and Use of Copyrighted Music

  1. A teacher may make a single copy of a song, movement, or short section from a printed musical work that is unavailable except in a larger work for purposes of preparing for instruction.
  2. A teacher may make multiple copies for classroom use of an excerpt of not more than 10% of a printed musical work if it is to be used for academic purposes other than performance, provided, however, that the excerpt does not comprise a part of the whole musical work which would constitute a performable unit such as a complete section, movement or song.
  3. In an emergency, a teacher may make and use replacement copies of printed music for an imminent musical performance when the purchased copies have been lost, destroyed or are otherwise not available.
  4. A teacher may make and retain a single recording of student performances of copyrighted material when it is made for the purposes of evaluation or rehearsal.
  5. A teacher may make and retain a single copy of excerpts from recordings of copyrighted musical works for use as aural exercises or examination questions.
  6. A teacher may edit or simplify purchased copies of music provided that the fundamental character of the music is not distorted. Lyrics shall not be altered or added if none exist.
  7. Performance by teachers or students of copyrighted music is permitted without the authorization of the copyright owner as part of a teaching activity in a classroom or instructional setting. The purpose shall be instructional rather than for entertainment.
  8. Performance of non-dramatic musical works which are copyrighted are permitted without the authorization of the copyright owner, provided however, that:
    a. the performance is not for a commercial purpose.
    b. none of the performers, promoters or organizers are compensated; and
    c. admission fees are used for educational or charitable purposes only.
  9. All other musical performances require permission from the copyright owner.

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