Playing Copyrighted music on SOTW

[milandro]

Just to give an example of how stupid can this kind of things get, in Belgium from next year on, kindergartens will have to pay royalties on the music and films that they might playing to the children , at a private home there are no right to be paid if you entertain children, a Kindergarten of 100 m2 will pay in the region of 136euro a year.

[click]

In the US:

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1. The purpose and character of the use, including whether such use is of 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
4. The effect of the use upon the potential market for, or value of, the copyrighted work

The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. http://www.copyright.gov/fls/fl102.html

[Pete Thomas]

Have read all the posts re playing copyrighted music but am still no wiser. What is the legal position about my trio playing a copyrighted piece and putting it up for critical comment on SOTW? I have tried asking the UK PRS but have had no reply!

Did you ring them? That would be better than writing. I've managed to speak to them on the phone about this.

Exactly! Look at Youtube, they break all the rules.

Actually, I don't think they do. Their terms forbid the uploading of copyright content, and if a copyright owner complains, they take it down. Besides I believe they actullay have some agreements with UK PRS about this anyway, I have received royalties from them for Youtube stuff.

Kind of off topic but I got booked in a top 40 band to play some bar. When we got there the owner told us he didn't have his ASCAP certification and asked if we could play all original tunes.

That makes sense, it has happened to me on TV shows, I have been asked to play only originals.

There are lots of tribute bands around. I never hear of them being sued for copyright violations. Does that ever happen?

Unlikely as they would not be breaking any copyrights purely by being a tribute band. Provided any CDs they made had the appropriate licenses. Playing cover tunes live is covered by the venue's licence (PRS, GEMA, ASCAP etc)

Thanks for all that Guys. it seems the quick answer is "At your own risk!" As a writer in the UK (6 books, all copyrighted) I understand this and agree that owners should be paid. I dont mind doing that but who do I pay in the UK? The PRS here don't seem to want to know!!!!!!

The PRS/MCPS can issue a LOEL, limited online exploitation licence which is not too expensive and will allow you to legally upload copyright compositions. I asked them about this and got the licence quite easily.

Do I have to pay royalties if I hum a tune walking down the street?

No. It might come to that one day though.

). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

You must be very careful about fair use. It should not be seen as right to copy copyright material for certain purposes, as it is mostly a defence you could use after the fact, and the outcome is far from certain, as it's down to the best lawyer or the whims of judge and jury.

In some cases fair use is defined, e.g. legitimate broadcast news coverage, photocopying part of a book for a lecture handout (but it must be a very small part of the book). My wife writes academic articles and books. They are educational but she still needs to get permission for quoting lines of songs, illustrations, notated musical examples etc.

Regarding putting something up on SOTW, you wouldn't be doing that, you would be linking to something on SOTW. So SOTW is not actually hosting the file (though with uploaded images and avatars it's a different story)

However there may be a different interpretation if you embed a copyright work in a Youtube video within a post. I don't know the law on that, it probably hasn't yet been tested.

[LampLight]

… it doesn't matter if the "performer" is getting paid … if you copy it without permission (the right in copyright) you have broken the law.

In the US:

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.”

… You must be very careful about fair use. …

So does "fair use" allow us to legally copy material to our mp3 players and make backups?

[Pete Thomas]

So does "fair use" allow us to legally copy material to our mp3 players and make backups?

That isn't the point of "fair use". It's more of a defense, I think, than a licence.

I think this much of this stuff is still legally untested.

What is legal is down to the actual licence you are granted when you pay for that material. If you buy a CD, the terms you agree to are usually written on the CD or booklet.

When music was just gramophone records and cassettes, it was known that people made cassette copies. Cassette manufacturers had to pay a "levy" on blank cassettes, that was basically given to record companies to keep them quiet.

Digital technology is totally different. A cassette was an inferior copy and less valuable as a means of distribution of music. A digital copy is basically no different to a master recording. Especially a CDR or wav file, but a high res mp3 is very close. And it costs nothing or almost nothing to duplicate, so piracy suddenly becomes extremely viable.

[Bill Mecca]

Pete is correct, Fair Use is a defense you can employ once you have been sued, you cannot exert it before that.

Basic premise: if you didn't create it, you can't use it, unless and until you get permission from the person that did create it. That permisssion comes in the form of a license, which unless it is a complete buyout will have limitations, i.e. time, location, number of copies.

That said, whether you get sued or not is an unknown, therefore it comes down to how much risk are you comfortable taking. Weigh the risks, and make your own decision, but if you are sued, don't think you can defend yourself by saying " but I didn't make any money from it... I didn't do it for money." It doesn't matter, if it's not yours you can't use it unless and until you get permission from the copyright holder (which at times can be difficult to determine and there may be more than one).

I am not a lawyer and this is not legal advice.

[tjaart]

What about TOTM, are those copyrighted tunes?

[Bill Mecca]

yes they are.

[differencetone]

We all break the law when we speed but I would much prefer for people to make their own music rather than play other people's music. That's not creative!

[LampLight]

Thank you to Bill and Pete (he said, as he scratched is confused head ). I can't help thinking there must be some legal basis for copying and backing up mp3s, although it's hardly the sort of thing one loses sleep over.

[click]

Here is an exact quote from the statute:


"§ 107. Limitations on exclusive rights: Fair use40

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."


Title 17 US Code Chapter 1 section 107

There is a link to this in post #22

The statute says, "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." A lot of the postings on SOTW easily fit into criticism, comment, teaching or scholarship, no worries [IMHO].

[Graftonsax]

I think we are forgetting a couple of things here. The OP is in Scotland? And this site is hosted from? Denmark? Finland? Sorry I forget where Harri is based, but I guess his hosting could be about anywhere. Does US or UK copyright law even apply? I honestly don't know which countries acknowledge US/UK copyright law.

Play all the copyrighted music you want here, unless one of three things happen 1. you try and collect money from it, 2. the original owner of the copyright tells you not to or, 3 Harri tells you not to.

I don't see the last 2 happening unless you attempt the first one.