Christopher Boyd discusses the issues of copyright and intellectual property as they relate to online learning.

I have seen a few different questions recently on the use of music for graduation ceremonies. First, I should say that I am not a lawyer, nor would I consider myself an intellectual property expert.  I do, however, have a fair amount of experience with US copyright law as an audio engineer.  My experience is in the United States and different countries have different laws, but I can tell you what I know.

Copyright is primarily about compensating creators for their work and protecting that work from exploitation.  There is a lot of information out there, but the most prolific (and therefore easily accessible) information is usually from the perspective of “how do I protect my work and get paid for it?”  US tax dollars have been spent on https://www.copyright.gov/ with a lot of good information…. that takes a while to navigate and digest. Unfortunately, “how do I honor copyright” is not nearly as prolific, so let’s break it down.

Before we address how to honor copyright, it’s important to know that copyright laws do not apply to everything.  As of January 1, 2020, musical works published in 1924 or earlier are in the public domain – as in, they are not subject to copyright protection. Other works after 1924 may also be in the public domain, but that’s a little more complicated. Public domain applies to the written work, not recordings of it.  There are no recordings in the United States that are public domain. Copyright law applies to any work that is “fixed” so any recording is both automatically copyrighted (even if some copyrights were violated in the process) and outside the public domain.  There is, however, the copyright rule known as “Fair Use” which basically acknowledges the fact that copyright protection is not absolute.  Fair use protections are anything but concrete and clear, but at the very least, it allows educators to use portions of copyrighted work for educational purposes (it’s not quite that simple, but it’s a concept to be aware of).  Now, excluding works in the public domain and fair use, the rules are a slightly more clear.

When it comes to online performance content, there are basically two types of copyright protection to be aware of: Mechanical rights and Performance Rights.  Mechanical rights are the traditional protections afforded the creator of the content (composer/publisher).  For audio-only reproductions (recordings), once a piece has been recorded, mechanical rights cannot be refused and simply require paying statutory rates.  From the days of physical media (tapes, records, & CDs), the statutory fee is the greater of 9.1 cents per song or 1.75 cents per minute.  This also applies to downloads.  Streaming rights are much more involved, but more on that in a moment.  One more caveat to mechanical royalties is that they only apply to audio-only formats.  As soon as video (or film) is added, they become “sync rights” – which have no statutory rates and must be negotiated individually.  That long list of music at the end of every movie? Yeah, every time you heard a fraction of a song in a movie, those rights were secured individually.

Performance rights in the US are the responsibility of the venue in which they are performed.  Every place from apothecaries to yurts that have public performances are supposed to pay blanket licensing fees to ASCAP/BMI.  Again, that gets more complicated than we have space for, but that is the live performance equivalent of mechanical and sync rights.  Even schools usually pay those fees in order for band and choir concerts to happen (plays and musicals are different – and again beyond the scope of what I’m discussing).

That’s all well and good, but so far, we’ve only talked about the rights and royalties paid to the composer (or more accurately, the publisher).  For live performances, the assumption is that the performer is compensated by ticket sales – or by the “exposure” (remind me again the price per gallon of gas in exposure?).  “Payola” even took exposure one step further to assume that by getting public play of recordings, the artists would make money from record sales. Enter: Napster.

Fortunately, while not as old or established (or backed as heavily by publishers), Digital Performance Rights are starting to come into their own.  As streaming has matured, laws, policies, and technologies have evolved to track “performances” of recordings in order to compensate the artists who made those recordings. The major streaming services make money from advertising and/or subscriptions that, in part, goes to pay royalties – both to publishers and performers. It’s far from a perfect system (it takes about 1500 plays for an artist to make $1) and there are such things as copyright trolls who make it their business to track down potential copyright infringements and make money settling them, but it’s a start.  It’s also, for the most part, transparent to both content creators and consumers.

As transparent as the process is, there are still rules and best practices.  First, DJ’s trying to do live streams or post “mixes” are acutely aware of the fact that playing someone else’s recordings online can and will trigger copyright infringement protection policies resulting in muted audio, suspended streams, takedown notices, and “copyright strikes.”  Each service handles these differently and just because you have secured permission doesn’t mean the automated copyright detection systems won’t slap you on the wrist (or worse).  Even public domain music can trigger copyright infringement monitors.  That said, if you are in the right, it is possible to challenge copyright violations.  I would like to mention two practices that will help avoid violation triggers than others:

First, live streams have different protections (technological, not necessarily legal ones) than posted videos.  It is my experience that most ASCAP/BMI licenses extend to events that are streamed live – as far as I know it’s not a hard and fast rule, just the experience I’ve had with organizations that have had their lawyers investigate it.  Those protections do not, however, automatically extend to live streams that have subsequently been saved for later viewing.

Second, live performances are less subject to copyright strikes than copyrighted recordings played during live performances (partly because there are fewer digital performance rights involved)..  That means if you want the Star Spangled Banner (yes, because it’s the national anthem it’s in the public domain by law – and it was written before 1924), sing it live or play a recording you made yourself.  Also remember that even though the original work may be in the public domain, the arrangement might not be.

One final thing to remember when it comes to online content – what is legal, what is allowed by terms of service, what you can get away with, and what won’t trigger technological flags are often very different.  It’s not a perfect world and the virtual world is even less so.

Disclaimer: Mr. Boyd is not a lawyer and nothing written here should be construed as legal advice. Please consult a lawyer for answers to specific questions. 

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