The idea that granting the creators and owners of original intellectual works will stimulate the creation of such works is as old as our nation. Federal copyright protections are intended to strike a balance between preserving the intellectual property rights of those who create writings, works of art, software, and other forms of intellectual property – including the right to control the use of such works and to profit from their use – and the need for widespread access and availability of such works for teaching, scholarship, and criticism.
The Office of Legal Affairs regularly fields questions regarding specific uses of intellectual property and their relationship to copyright protections. While the materials presented here are intended as a general guide, Georgia Southern University faculty and staff are encouraged to seek clarification from the Office of Legal Affairs whenever there is doubt concerning the use of copyrighted materials. The following information applies only to copyrighted materials. It does not apply to materials that are in the public domain or uncopyrighted governmental materials. Guidelines for appropriate attribution of excerpted or quoted works apply to all works, whether or not copyrighted.
What materials are copyrighted
Though the United States Copyright Office offers a registration process to those interested in obtaining the maximum protection for their copyrighted materials, the registration is merely a formal recognition of a right that exists automatically by operation of law. In fact, any of the categories of work recognized under the Copyright Act is automatically subject to copyright protections the moment is recorded in any form, be it electronic, painted on a canvas, or scrawled on a legal pad.
Materials in the public domain
Materials that are in the public domain are not subject to copyright protections, and may be copied, displayed, and distributed at will. Materials may enter the public domain through expiration of the copyright, by the decision of the copyright owner to place the materials in the public domain, or by virtue of the fact that the materials were not subject to copyright protections to begin with (such as is the case with many government document). Naturally, the availability of materials in the public domain does not excuse their use without appropriate attribution.
The question of what materials are in the public domain may be complex, because a single item might be subject to more than one copyright, not all of which might have expired. Consider these scenarios:
A compact disc containing a recording of a modern pianist playing J.S. Bach’s Inventions. The works were written in 1723 and are in the public domain, but the recording of the much more recent performance of the works may still be subject to copyright.
A compact disc containing a transcribed recording of a 78 rpm record, manufactured in 1910, of a pianist playing J.S. Bach’s Inventions. In this case, both the music itself and the 1910 recording of it have passed into the public domain. However, the compact disc might contain edits, alterations, or compilations of music that would, in their own right, be subject to copyright.
Deciphering copyrights isn’t impossible, but it does take a bit of analysis at times, with an eye toward just what rights are owned by what parties.
Clearing up the confusion
While the Fair Use Doctrine and the TEACH Act exist for the purpose of encouraging (or at least permitting) reasonable use of copyrighted materials in educational settings, the uncertainty these rules create, coupled with at times aggressive enforcement by copyright holders, renders these laws only partially effective in creating for instructors a “safe harbor” within which they may be assured that their actions are not subject to challenge. Where doubt exists, permission for particular uses of copyrighted materials (a license) may be sought from the copyright holders. Whether this will be possible in a particular case depends on how easy or difficult it is to locate the owner of the copyright, and that owner’s willingness to permit the desired use of the materials at no cost, or at a manageable cost. But where written permission for specific uses of copyrighted materials are first secured, there need be no doubt as to whether that use will (or will not) be protected under fair use rules. Stanford University Library publishes an excellent practical guide to those interested in securing copyright permissions, the Introduction to the Permitting Process. Many copyright owners are participate in the Copyright Clearance Center, a clearinghouse useful for obtaining copyright permissions for a broad range of copyrighted materials.
Music performance licenses
The public performance of music and/or the exhibition of film are strictly protected by copyright law. In general, one must secure a license to publicly perform such works, even if no performance fee is charging to the audience. In most cases, live public performance of copyrighted music is covered under one of the blanket license agreements the University maintains with ASCAP, BMI, and SESAC. Such licenses also cover public use of recorded music, such as that played in public spaces, telephone hold music, and the University radio station. Likewise, there are several film distributors, such as Swank Motion Pictures, Inc. and Criterion, which manage the public exhibition of films. It is important to note that rented or purchased copies of moves via physical formats such as DVD or BluRay are strictly for home use and are not authorized for mass exhibition. Questions about specific uses permitted under these licenses should be referred to the Office of Legal Affairs.
Various pieces of software floating around on the Internet and elsewhere enable users to illegally download unlicensed music, videos, or software for free, and to share those files with others who would also like free access to these materials. Not everyone agrees that this practice ought to be illegal, but nobody can deny that it is. Trade organizations such as the Recording Industry Association of America (RIAA) are aggressively opposing free file-sharing. The RIAA is filing suits against college and university students who have copyrighted materials available for file-sharing on their computers.
The RIAA and other trade groups regularly notify Georgia Southern University of the presence of unlicensed materials in file-sharing programs on machines hooked to our network. Under the law, Georgia Southern could face liability if it fails to disable the account and notify the account holder why this has happened. To prevent this, we move quickly to fulfill our legal duties and prevent further distribution of unlicensed files over our network.
A lot of Georgia Southern students have been getting these notices from the Office of Legal Affairs. Because having illegal file-sharing software and content on a computer hooked to our network is a violation of Georgia Southern’s computer use policy, the names of students about whom we receive these notices are turned over to Judicial Affairs.
The Office of Legal Affairs moves quickly to protect the University from liability in these situations. Students should work with Information Technology Services to restore their online accounts.
The Office of Legal Affairs exists for the purpose of serving the legal needs of the University, and cannot offer students legal advice in these matters. A few words of general information might be in order, however:
The RIAA and the other industry groups do sometimes sue students. Just because you get a notice from the Office of Legal Affairs doesn’t mean you are being sued. The Office of Legal Affairs does not know whether you are being sued or not. If you require legal advice, you will need to contact your own attorney.
Not all downloaded music, videos, and software is illegal. For example, providers such as iTunes, Napster, and Ruckus provide legal licensed product. Realize, however, that just because you are rightfully in possession of a music file does not give you the right to distribute it to others via file-sharing software.
The RIAA and other industry groups have technological means to sniff out the presence of file-sharing software loaded with unlicensed content. Please don’t think that illegal file-sharing won’t be noticed — the RIAA catches infringers every day.
What constitutes a public performance?
Any exhibition of a movie outside the privacy of a home setting is considered a public performance
Do we need a license even if we don’t charge admission?
Yes. A license is required for all public performances regardless of whether admission is charged.
What if a video store or equipment provider says it is okay to exhibit rented or purchased
These stores rent and sell movies for “Home Use Only” and cannot provide legal permission for use outside the home. You can only obtain licensing directly from a licensor such a provider listed above, not from a third party.
I own the movie. Do I still need a license to show it outside my home?
Yes. Neither the rental, purchase, or lending of a videocassette or DVD carries with it the right to exhibit movies publicly outside the home.
I want to show an old movie. Do I still need a license?
Yes. Copyright pertains to all movies regardless of the year it was produced.
If I purchase a license to show a movie, can I show that movie whenever I want?
No. Licenses are for a specific designated time frame. There are not annual licenses available to colleges and universities.
A small group is having an informal gathering in our facility. Do we still need a license?
Yes. A license needs to be obtained if the movie is being shown outside the home, regardless of the number of people attending the screening.
What if I want to show a movie in a classroom setting?
You must conduct a Fair Use analysis.
Last updated: 11/11/2020