Submission Date:
Question:
A local county Music Educators Association has approached my BOCES and has asked if we would house & manage their music library. Apparently, the music library was at one point housed at this BOCES, but was then moved to one of the participating districts when BOCES said they would charge a fee for the service. It is my understanding that multiple school districts buy, share, make copies and physically loan choral and band sheet music to each other. One of the music teachers has indicated that the library consists of 581 choir pieces and that each piece has 100-200 copies (and that’s not counting the band music).
I’m concerned that the number of copies the teachers have made of each choir piece is a copyright infringement and also am unsure if it’s even legitimate to loan and share the original pieces among multiple districts for the purpose of shared usage and I’m hoping you can help point me in the right direction in terms of how a music lending library could work (legally!) in terms of copyright, licensing and fair use.
Answer:
Yes, I can point you in the right direction…but I can’t take credit for drawing the map!
Since it pertains to a local “Music Educators Association,” this question brought me on a pleasant journey into the chartered territory of the “New York State School Music Association,” a/k/a “NYSSMA.”
NYSSMA is the organization for school music educators in New York. Its mission is to “advance music education across New York State for its membership and students in member school programs.”
Like libraries, schools, and BOCES, NYSSMA is chartered by the Regents of the State of New York. To enable meaningful participation on a local level, NYSSMA is broken into 15 zones.
In the member’s question, it sounds like a local zone of NYSSMA is asking a local BOCES for assistance.
Since both entities are chartered by the Regents, this makes sense; it’s like your cousin asking if she can store tools in your garage. Except in this case…you aren’t sure where your cousin got the tools. Or who might ask to borrow them.
As the member points out, this uncertainly could be cause for concern. This is particularly true because under copyright law, a license is required to not only duplicate music, but to perform it, so an entity providing unauthorized copies could experience more than one type of liability.
Fortunately, there are many helpful resources to address this, and the basics are set out in plain language on the page of NYSMMA’s national affiliate, the “National Association for Music Educators (“NAfME”).
On their helpful page, found at https://nafme.org/my-classroom/copyright/, NAfME outlines the basics of managing a music library for NYSSMA members.
As stated by NAfME:
“Unlike most educators, music educators must face copyright compliance frequently throughout their career. Although the thought of copyright can be intimidating and a complex subject, NAfME has a multitude of resources that can help you better understand U.S. copyright law.”
How does an institution considering providing this service get started? Any institution considering housing a music library (or script library, or an architectural plans library, or anything that will be licensed and/or loaned under particular conditions) for another entity needs to do these three things:
1. Research and assess the full scope of what will be required;
2. When the full scope is known, develop a budget, policies, job descriptions and a contract (or term sheet) to support what is needed; and
3. Finalize the arrangements in a way that mitigates risk,[1] and makes the service effective and sustainable.
Since this type of analysis can reveal the complexities of what may seem like a simple service, it is not surprising to hear that at one point a fee was required for it!
As the resources on the NAfME site show, housing and managing a music library is potentially a very detailed endeavor. And while technology has made some aspects of the tasks involved easier, any institution providing such a service will need to make it a part of someone’s job.
So, after reviewing the basics on the NAfME site, it would be good to have a forward-thinking and specific discussion that addresses the following:
- Whose property are the copies to be housed and managed?
- Are there copies of the original purchase agreements and licenses?
- How is the collection to be searched?
- How is the music loaned out?
- Who tracks copies on loan?
- What is the approach for unreturned copies?
- Who arranges for performance licenses, and who keeps copies of permission granted?
- How are new works accessioned?
- How are copies de-accessioned?
- How are damaged copies replaced?
- What is the value of the collection?
- What is the cost of the service?
In addressing these questions, it is important to note that NYSSMA has access to numerous copyright-related resources as a member of NAfME. For instance, as noted on the NAfME “copyright” page: “Through an agreement with ASCAP and BMI, NAfME (or MEA) sponsored groups are granted performance rights of music managed by these organizations. (This covers only performances sponsored by NAfME or federated state associations of NAfME.) However, if members wish to record their students’ performance of any work, permission must be obtained through Harry Fox Agency.”
So awareness of NYSSMA’s rights, as parties explore how they could assist with housing and managing a NYSSMA-owned collection, would be critical. Solid and well-coordinated compliance with license terms would also be important.
I know this is just the overture to a full answer, but thank you for a well-composed question.[2]
[1] For instance, if the collection is valuable, insurance coverage should increase.
[2] In researching this answer, I also enjoyed reading the discussion of the qualifications of a music librarian, found on the Music Library Association’s web site at https://www.musiclibraryassoc.org/page/MusicLibrarianship. I don’t know if a person with music librarian skills is needed for a service like this (likely not), but only the analysis I set out above could confirm that.
