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What Fair Use Is (and Isn't)

A teacher came to me last week asking if it was copyright-compliant to download a YouTube video to show in an upcoming concert. "After all," she surmised, "it's publicly viewable already, and we're a school, so it's fair use, right?" Fair Use is that aspect of U.S. copyright law which gives considerable leeway for use of otherwise protected materials to schools and educational institutions "for educational use." As the notion of copyright lurches into the digital distribution era, that has been interpreted fairly generously for schools and teachers, although sometimes "educational use" becomes a universal trump card that far exceeds its purpose and intent. While there are few truly definitive laws thus far with digital materials, there are some princples and legal guidelines which, when applied to questions of use and distribution, help us know whether we are operating within the spirit and scope of copyright and Fair Use.
Disclaimer: I am not a lawyer, and this is not legal advice.
What's Your Audience?
In my example above, the teacher wanted to show a few YouTube clips of orchestras as people entered the concert. Her idea was that it would be great to a) set the tone of the concert with appropriate music, as well as b) showing students that music is practiced by many different kids of ensembles and musicians. Clearly, she has an educational intent for both the students and the audience, but does it count as "educational use?" One of the major digital-era copyright laws is the TEACH act, which gives teachers the right to distribute digital materials to students. One of the keys of the act is that you have to be able to show that you have a reasonably-defined group of students (e.g. your students/ensemble), and that whatever materials you share are only shown to them.
For example, if I would like to show an episode of BBC's "The Choir" in class to talk about sectional rehearsal techniques, I can. If I would like to share a recording of that video on an internal website which is only accessible to members of our group (e.g. a LMS/CMS, internal blog, etc.), I can. What I cannot do is hand a copy of a DVD to each singer and say "go watch this at home"-- by making copies and passig them around, I can no longer say that it's only accessible to members of my educational body.
In our initial example, the teacher wants to display the video to people outside of her ensembles (the audience at the concert), so it does not count as educational "Fair Use."
Ownership Still Matters
YouTube (as well as Vimeo and other services) is an incredible resource for musicians and music educators: countless examples of genres, eras and instrumentation/voicing all across the spectrum from beginning musicians to professionals. It's rife with copyright pitfalls, though, and Google (which owns YouTube) adjusts the rules every few months to try and keep it on the correct side of the law. One common issue when it comes to educators is the use of downloaders (either plugins/software or websites) which allow you to download videos from YouTube and keep them on your computer. Educators do this for several reasons: YouTube might be blocked at their schools, so they download the videos at home and bring them in, or their Internet connections at school may be unreliable, leading teachers to download the video to try and ensure that they'll be able to show the video effectively.
The catch is that none of these solutions are YouTube-sanctioned. Furthermore, YouTube does not grant anyone permission to download and keep any movies that it hosts on your own computer. To do so deprives YouTube of the advertising revenue and data mining which are the basis of its commercial model. This runs afoul of the other common misunderstanding of educational use: the "commercial integrity" test. In essence, you cannot do anything under the auspices of Fair Use which violates the commercial integrity of the product in question. Take the common example of photocopying sheet music: Sheet music is meant to be sold as individual copies, commesurate to the number of singers who will be using the score. If you take one copy of a score and photocopy it for all of your singers, you are violating the commercial integrity of the product-- you are only buying one copy for a scenario which clearly entails purchasing more than one, and short circuiting the commerical model of the publisher in the process.
YouTube's commercial model is that users should go to the website in order to view the videos. Downloading them and hosting them on your own (even if it's for educational use, and even if it's for a closed population) defeats their commercial model. Our teacher above made the mistake of thinking that having access be "public to view" was the same as it being "public to own." While digital sharing is completely embedded (sorry!) in the Internet now, it does not remove the distinction between those materials which you have right to view and access, and those which you have the right to own and manage. 
Digital copyright law is an enormous and evolving conversation, and one that likely has several more shifts before it arrives at anything resembling a "new norm." The underlying principles of "defining your audience" and "commercial integrity" are at the heart of media ownership, though, and keeping them as litmus tests for your own media questions will help you navigate the complex world of copyright. If you a producer of media, these are questions that you have the ability to define more specifically for your work using tools like Creative Commons, where you can specify to greater detail what rights you grant to the world using your materials. Finally, the underlying question for many people will be "am I going to get in trouble if I go too far?" In the current climate it's hard to imagine that any one individual is going to get pinched for copyright infringement given the tidal wave of intentional piracy online. It's true that the odds may be low that your concert program or class website is going to attract legal attention. As professionals in the field, however, we have a vested interest in media ownership and protection, and ensuring that we fully understand the system as it stands today makes us more prepared and qualified to help shape the conversation moving forward.
on April 4, 2014 11:14am
Excellent article.   Thanks for putting this on ChoralBlog!