Submission Date:
Question:
More than once we have received requests to provide digital copies of audio files from institutions that wish to make them accessible either through headphones or as ambient sound as parts of public exhibitions. The exhibitions presumably charge some sort of fee. We have had requests both for commercially released recordings and for archival, unpublished recordings for which we do not own either composer or performers rights, some of them dating prior to 1972.
Some of the questions raised from this issue:
- What do requesting institutions have to do to acquire the necessary rights to play audio at their exhibitions?
- Does it matter if audio is provided via headphone or open speakers?
- Does it matter if an entire recording is played vs. an excerpt?
- Are excerpts of certain duration allowable regardless of securing permissions?
If excerpts of a certain duration are allowed, is it the duty of the holding institution to create the audio files of the excerpted portion rather than providing the audio of an entire work? - As many exhibitions occur at locations remote to the holding institution, actual on-site checks for compliance are prohibitive. Does this change anything in terms of how permission forms should be crafted?
Answer:
This one is tricky.
It’s tricky because it stands on a no-man’s land comprised of fair use, library law, contract, and licensing. This is a place where libraries boldly go on a routine basis, but lawyers fear to tread. But we’ll try and parse it out.
To do so, we need to remember some “Considerations”:
Consideration #1: Section 108 (d) of the Copyright Act allows a library to duplicate and distribute, for non-commercial use, a “small part” of an audio recording based on a request of a patron or another library.
Consideration #2: Section 108 (e) of the Copyright Act allows a library to duplicate and distribute, again for non-commercial use, the entirety of an audio recording based on a request of a patron or another library, IF a replacement copy cannot be purchased for a reasonable price.
Consideration #3: Disappointingly and tragically (but predictably), musical works are excluded from Section 108. What does that mean? Here’s an example: a recording of Robert Frost reading a poem may be duplicated under 108...but a recording of that same poem set to music may not.
Consideration #4: Although Congress legislated that 108 protections don’t apply to musical works, it has also stated[1]:
…it is important to recognize that the doctrine of fair use under section 107 remains fully applicable to the photocopying or other reproduction of such works. In the case of music, for example, it would be fair use for a scholar doing musicological research to have a library supply a copy of a portion of a score or to reproduce portions of a phonorecord of a work. Nothing in section 108 impairs the applicability of the fair use doctrine to a wide variety of situations involving photocopying or other reproduction by a library of copyrighted material in its collections, where the user requests the reproduction for legitimate scholarly or research purposes. [emphasis added]
Which brings us to…
Consideration #5: A library can make a partial or complete copy if it is a “fair use.” Fair use is determined on a work-by-work basis, applying the four factors[2] set out in Section 107 of the Copyright Act.
Consideration #6: An initial “fair use” can meet the requirements of 107 (say, 10 bars of music contrasted with another in a documentary film), but a subsequent, related use might not (the same 10 bars in an TV ad for the same documentary).
Consideration #7: None of this matters if the copy is coming from a license (a contract) that imposes greater restrictions a library.
Bearing these seven “Considerations” in mind, let’s check out the member’s questions in relation to the scenario they provided:
More than once we have received requests to provide digital copies of audio files from institutions that wish to make them accessible either through headphones or as ambient sound as parts of public exhibitions. The exhibitions presumably charge some sort of fee. We have had requests both for commercially released recordings and for archival, unpublished recordings for which we do not own either composer or performers rights, some of them dating prior to 1972.
Question: What do requesting institutions have to do to acquire the necessary rights to play audio at their exhibitions?
Answer: If the work is protected by copyright, and they can’t justify a fair use, they need a license to play the audio at their exhibition. As the member points out, if the library providing the copy is not also the rights holder, the requesting party needs to work with that third party for permission to play the copy in public (unless it is a fair use).
But that is a secondary consideration for the library who might be providing the copy. Remember “Consideration #6:” the initial basis for the request could be allowed under 107 or 108, even if a latter use in not allowed. Combine that with what we established in “Consideration #4:” Congress knew that subsequent uses might not be legitimate. So, to protect libraries, and to protect the sharing of knowledge for purposes of scholarship and creativity, they made it very clear: if the first basis for the copy is legitimate, and the providing library has no knowledge of plans for infringing uses, the providing library will not be liable for infringement.
This is hard, because librarians are both helpful, and tend to be relentless gatherers of information. If a patron requests a copy and discloses an infringing use for that copy, it cannot legally be provided. This is true even if the requester subsequently gets a license (since there is no guarantee the license would retroactively extend to the providing library), although at that point, any damage claim would likely be moot.
Question: Does it matter if audio is provided via headphone or open speakers?
Answer: The number of speakers (headphone or otherwise), the location of the devices, the size of the audience, and the capacity of the venue matter can all matter to an analysis of fair use. But again, unless the exhibition is the only reason for the request, that information should not impact a providing library’s 108 or 107 analysis, unless the precise use is disclosed as part of the immediate basis of the request.
Question: Does it matter if an entire recording is played vs. an excerpt?
Answer: If the requesting institution is relying on a fair use defense, absolutely, yes. The amount of the work used is one of the four factors.
Question: Are excerpts of certain duration allowable regardless of securing permissions?
Answer: Recent case law[3] shows that even the tiniest duration can be infringement, if fair use factors are not met. But don’t let that stop you from providing a 107 copy! If the fair use factors are met, it is conceivable that a person could use the entire work. There is no set formula; fair use can only be assessed on a work-by-work basis.
If excerpts of a certain duration are allowed, is it the duty of the holding institution to create the audio files of the excerpted portion rather than providing the audio of an entire work?
This is not a binary question, it is an algorithm. Here we go:
- The holding institution should try to ascertain if the work is still protected by copyright. As the member points out, this depends on dates and publication status. If it is still protected…
- The holding institution should establish what type of copy it is providing: 108(d), 108(d) or 107.
- If it’s a 108 (d) copy, the institution should document that the 108 (a) and (d) factors are met, and if they are, may copy a “small part” (but remember, 108 doesn’t apply to a musical work).
- If it’s a108 (e) copy, the institution should document that the 108 (a) and (e) factors are met, and if they are, may copy the entire work (by now, you surely remember that 108 doesn’t apply to a musical work).
- If it’s a 107 (fair use) copy, after applying the factors, only copy what’s justified; when in doubt, seek legal advice. This is tough to give guidance on, because “fair use” can only be assessed on a case-by-case basis. For the example provided, there is no clear answer. Sometimes, even if the access to the work is free, the use isn’t “fair,” while sometimes, even if money is charged, the fair use factors are met. So if you go down the 107 road, be sure to get information relevant to the factors, stick to the use at hand (not potential later uses), and apply the factors. This is true for both commercially released recordings and for archival, unpublished recordings (although publication status is part of the second fair use factor).
Question: As many exhibitions occur at locations remote to the holding institution, actual on-site checks for compliance are prohibitive. Does this change anything in terms of how permission forms should be crafted?
Answer: As quoted above, it was the intent of Congress that a library not be liable for subsequent unlawful use.
For a 107 copy, this starts and ends with the library’s assessment of the fair use for the copy at the time of the request. Your forms should solicit information only about the immediate need for the copy, and assess if the request is within your institution’s comfort zone. Your forms should not ask about prospective future uses, which may be beyond your control, nor should you feel any obligation to police the use, which is impossible.
Here is food for thought: forms should promote making a 108 copy whenever possible. 108 protection, while narrower, is far less subject to debate; 108 factors are clear and easy to document. “Fair use,” on the other hand, is often in the eye of the beholder. Judges must not only apply four factors of analysis, but as recent case law has recently re-affirmed[4], the four factors are not so much weighed, as considered in relation to each other. It’s a tough analysis that unfortunately inspires erring on the side of caution. So use 108 whenever it can apply.
A lot of questions, a lot of answers, and a lot of food for thought. This is a rapidly evolving area of law, so check back in on this issue in a year or so. The Copyright Office, various library organizations, and Congress all know that the law isn’t quite up to the challenge of technology (108 still uses the word “phonorecord,” which my Spellcheck actually refuses to recognize), so this complex web will continue to evolve.
And in the meantime, if someone requests a copy of audio by Anthony Barré, use it as an excuse to read Estate of Anthony Barré and Angel Barré v. Carter, et al. (a/k/a Beyoncé and Jay-Z), because it’s a good illustration of why this response is so very, very convoluted!
[1] House Report 94-1476.
[2] The factors are:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
[3] Estate of Anthony Barré and Angel Barré v. Carter, et al. No. 17-1057 (E.D. Lou. July 25, 2017). In this case, pop star Beyoncé used very small clips from Anthony Barré’s recorded spoken word performances in the song “Formation;” the court ruled that while the amount of Barré’s work used very small, and was but a small part of the song, the overall factors did not make the use fair.
[4] Cambridge University Press v. Mark P. Becker No. 1:08-cv-01425-ODE (N.D. Ga. Mar. 31, 2016)
