Performance and Display: Nonprofit Educational Institutions

Some of the best exceptions in the Copyright Act are for performances and displays in nonprofit educational institutions. For face-to-face teaching in a nonprofit educational institutionin a classroom, with simultaneous presence of students and teachers in the same physical spaceany copyrighted work may be performed or displayed as long as the purpose is for instruction. This section 110(1) exception is referred to as the "classroom exemption."[1] Under this exception, students and teachers may act out a copyrighted play, sing a copyrighted song, listen to copyrighted sound recordings, or view a motion picture in its entirety if the conditions previously mentioned are met. Inviting or allowing members of the public to see or hear the performance causes loss of the exception. While the word "classroom" is broadly defined, "nonprofit educational institution" is not. Whether public or private, the school must be organized under the tax code as a nonprofit educational institution. Corporations that have a nonprofit educational division do not qualify, nor do proprietary or for-profit schools.

Nonprofit educational transmissions of copyrighted works encompass both distance education and online portions of face-to-face courses. Section 110(2) is a 2002 amendment that covers performances and displays that are transmitted by nonprofit educational institutions as a part of instruction. Referred to as the TEACH Act, it allows entire nondramatic literary and musical works to be performed without a license, but only "reasonable and limited" portions of other works, such as motion pictures and other audiovisual works, operas, and plays, may be performed. For display, the same number of pages, graphs, images, and so forth that would have been displayed in the face-to-face classroom are permitted. In order to qualify for the section 110(2) exception, a number of conditions must be met: (1) the nonprofit educational institution must be accredited, (2) the performance or display must be made by or at the direction of the instructor as an integral part of a class session, (3) the performance or display must be technologically restricted to students enrolled in the course, and (4) the institution must institute copyright policies and educate the campus community about copyright.

Questions in this chapter cover reproducing sheet music for performance, the use of specialized equipment to create copies of performances for the visually impaired, the use of images on PowerPoint slides for the classroom, and recording student performances of musical and dramatic works. Of importance to both faculty and librarians is the use of course management software for performance and display and the adoption of streaming and other technologies, which are also discussed.

Art students in a nonprofit educational institution create collages using graphics, photographs, found objects, and the like. Is it fair use to display these collages in the school?

Even better, it is not only likely to be fair use, but such displays also fall under section 110(1) of the Copyright Act when the work is to be presented in a class. Referred to as the "classroom exemption," it permits students and teachers to display or perform any copyrighted work in the classroom when it is part of instruction. While the statute is limited to the classroom, it is difficult to envision a copyright holder complaining about the display of a collage done by an art student in other areas in the school. These displays likely would be found to be fair use. If, however, the student then does something else with the project, such as to display it in a traditional gallery, permission may be needed.

A library wants to digitize analog slide collections, such as art history, architecture, and history of graphic design, that are not otherwise available digitally so that they can be displayed to classes and made available to students for study. What are the copyright implications?

Digitizing slides is basically reproduction and may be infringement. To some extent, it may depend on the quality of the digitized slide. For example, if the digital version is a thumbnail of low resolution, it may be less of a problem than if the digitized version is high resolution. Low resolution might be used in an index or a catalog so that the user then retrieves the original slide. The problem with high Resolution slides and wide availability is that they can then be used for further reproduction. If the slides are commercially produced, and there is no digital version available for purchase, the library may want to seek permission for the digitization.

If a library digitizes the slides that a faculty member needs to use in a class for a semester, and the digitized slides are used simply to display for a class, this may be fair use and/or it may qualify under section 110(1) of the Copyright Act, ignoring the fact that the copy was made in the first place. Clearly, a good argument can be made that this is the modern way to display slides in a classroom.

When the instructor then wants the digitized slides placed on a website for the duration of a semester, section 110(2) permits this if there is no digital version available for purchase. All of the requirements of 110(2) must be met, however, such as password protecting the site so that the slides are not generally available on the web but only to students enrolled in the class. Further, the slides should cease being available on the website or in course management software at the end of the class term.

An elementary school music teacher acquired the rights to perform Fiddler on the Roof publicly. She adapted the work by simplifying it so that young children could easily perform it. Is this mutilation of the work?

It certainly would constitute an unauthorized adaptation of the work absent permission to do so. It is possible, however, that in obtaining the rights to perform the musical she also acquired the rights to adapt the work by simplifying it for young performers. She did not publish the changes she made but simply used them. In order to answer the question fully, the terms of the license she obtained would have to be examined.

An elementary school is performing How the Grinch Stole Christmas as a play tied to a family literacy night with music and other activities at the school. Parents are invited, but there is no charge for the performance. Is there a copyright problem?

Under section 110(4) of the Copyright Act, a performance of a nondramatic literary or musical work by a nonprofit organization is exempted when (1) there is no payment of fees to promoters, organizers, or performers and (2) either there is no admission charge, or if there is one, proceeds go to charitable, religious, or educational purposes. The book is a nondramatic literary work. Under these conditions, there is no problem.

Somewhat more information is needed concerning whether "performing the work as a play" also means creating a derivative work, or whether the literary work is simply read with the characters speaking their lines. If it is a derivative work, permission would be needed. The performance should be from the book and not from the motion picture, as movies are not covered by the section 110(4) exception.

The school purchases all of the music performed by each section of the band and provides copies of all music to each band member (i.e., everyone gets a copy of the sheet music for first trumpet, oboe, and so forth). Because students lose and/or mutilate their music, the band director began to file the original purchased music and then make copies for each student. This way, if the tuba player loses his music, the entire band does not suffer. Is this infringement?

The Guidelines for Educational Uses of Music are voluntary guidelines that were negotiated in 1976. They are published in the House Report that accompanied the Copyright Act (House Report 94-1476). According to the Guidelines, emergency copying for performance is permitted as long as the school purchases the copies of the music afterward. Copying as preservation is not actually mentioned in the Guidelines. Under section 108 of the Copyright Act, a library is not permitted to do preservation copying in advance of either actual loss or deterioration. So, by analogy, this may be problematic.

On the other hand, however, it is very common practice for performers to photocopy their sheet music for ease of performance, and few would think this is infringement since they have purchased the sheet music and are just putting it in a format to facilitate performance. While there is no direct statutory authority to permit the copying described, it is unlikely that a court would find it other than a fair use. Some of the fair use factors lead to this opinionthe character of the use (nonprofit educational use and nonprofit performances) and the market effect. One could argue that there is no market effect since the music was purchased.

At a public school, the concern is about making multiple copies of school music performances, such as students singing, graduation ceremonies, and orchestra performances. And the teachers want copies of the Christmas music program for each student to keep. Is this permissible? What section of the TEACH Act governs this?

It is not the TEACH Act, but section 110(4) of the Copyright Act, that permits the performance itself (so long as there is no admission charge and no payment of fees to performers or promoters). If there is an admission charge, then proceeds should go to educational, religious, or charitable purposes. The Guidelines for Educational Use of Music governs copying the music performance. These are negotiated guidelines that were published in House Report 94-1476, which accompanied the Copyright Act of 1976. They are available at ~unclng/music-guidelines.htm. The Music Guidelines state at A.4., "A single copy of a student's performance may be made for evaluation and rehearsal purposes. This copy may be retained by the educational institution or the individual teacher." Thus, the Music Guidelines do not permit multiple copying of the performance or copies to be provided to students.

  • [1] The language of the statute is exemption, although it is more in the nature of an exception
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