Licensing

To answer this question in 2025, we requested a copy of the updated/new license, because just like cheese, slab-on-grade floors, and skin care regimens, contracts change over time.

We got a copy of the license, and it is so festooned with movie studio logos that we aren’t re-printing it here, for fear of angering a trademark bot.[1]

Aside from LogoFest, there were three things that caught my eye about the license:

First, it was formatted like a certificate my ten-year-old gets for being “A Great Speller!”[2]

Second, it does indeed contain the sentence quoted by the member: The license enables use of any legal formats licensed for “home use only.”

And third: The LogoFest has a purpose, which is to work with the “home use sentence” quoted by the member and provide: “All exhibitions by your school of these copyrighted movies for non-teaching uses from the studios represented below are in full compliance with the copyright laws of the United States while this license is in effect.”

This means I can answer the member’s follow-up question: Can they legally put that on their movie license?

If Swank has contracts with the listed studios that allow them to override the restrictions, the answer is YES. Since Swank is a major player with a lot to lose here, I imagine those contracts are in place.

This means that whether the copy is on a streaming platform, an optical disc, a video cassette tape, or an old-school film reel, viewing at the school is authorized by the Swank license, even if it says “for home viewing only”. HOWEVER, to return to the 2019 question that started all this, that does not mean the license has altered the terms of an individual’s streaming service, which are based not only in copyright but in contract law.

To make an analogy: If I take my parents’ car without permission, but when I do, I park it properly and feed the meter, I won’t get a parking ticket (a copyright claim from the studio), but I still might get in trouble for taking the car (a contract claim from the streaming service).

This means that even with this fancy certificate hanging on the wall, a teacher isn’t authorized to use their personal HuFlixPrime[3] account to show it, unless their agreement with the streaming service makes that okay. That said, if the content they showed at the school was covered by the license, the only penalty would be for misuse of the streaming service, not violation of the copyright of the movie.[4]

In closing, I’ll address the elephant in the room: Considering that the fancy new certificate format[5]

 is designed to make schools feel really comfortable about watching movies at the school, is this misleading on the part of Swank? I have to say no. Swank is providing a straightforward license, and it is up to schools to make sure they are providing the appropriate streaming services for teachers to use with it. In doing so, schools should not rely on teachers’ personal streaming accounts but instead provide access to accounts held (and paid for) in the name of the institution.

Thank you for a perceptive question!

This is a great question! I cannot wait to dive into the various sections of the Copyright Act that address this.

Before that, however, it is important to define the scope of what is being done (and what is NOT being done).

Of relevance:

• This is being done by an academic library;
• This is being done in a closed environment (not the open web);
• This is being done for access to materials in academic classes.

Also of relevance: the question is limited to published material that the institution does not subscribe to or own. We will assume that this “old” content is not so old as to be out of copyright.

I am sure there are many names in the archives/library biz for this type of asset (“old scanned article” being one of them). But for purposes of this answer, let’s call them Useful But Unacquired Proprietary Electronic Academic Artifacts, or UBUPEAA’s.[1]

And now it is time to dive.

There are not many ways an academic library can justify re-homing and providing a UBUPEAA[2] via a permalink in the library’s digital collections for purposes of classroom use.

Let’s talk about what doesn’t allow this:

Section 108 of the Copyright Act, which does allow libraries to make copies under certain circumstances, specifically doesn’t apply when the library “is aware… that it is engaging in the related or concerted reproduction or distribution of multiple copies… intended… for separate use by the individual members of a group.”[3] So, expressly creating the link for a class (“a group”) is not allowed by Section 108.

Section 107 (“fair use”), which allows anybody to make copies under certain circumstances, cannot reliably enable internal posting of UBUPEAA’s, because each article would have to be analyzed separately (and the analysis could change, based on a particular use).[4]

Section 110, sub-sections (1) and (2), could allow the URL if it is enabling the “performance or display” of the PDF during a synchronous or asynchronous teaching session,[5] but only to the extent that the materials are displayed and shared during the class (not for homework outside class time).

BUT!

Let’s go back to Section 108.

It is important to remember that the decision of the library to make one copy under Section 108 is different than a decision by an instructor or student regarding how to use the copy.

Under Section 108, an academic library can:

(a)… reproduce no more than one copy… if—

(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;

(2) the collections of the library or archives are (i) open to the public… ; and

(3) the reproduction or distribution of the work includes a notice of copyright…

Although the law and the guidance on it largely pre-date scanning and the internet,[6] Section 108 does NOT state how this 108(a) “reproduction” must be made.

So, a regular practice of putting a UBUPEAA on its own URL as part of that academic library’s collection might—unless the library is doing so to gain a “commercial advantage”—be allowed, if the other requirements of Section 108 are followed.[7]

After that, “distribution” of the copy in the collection to others must fall into one of the uses allowed by Section 108.

In this case, after making the article part of the collection, Section 108(d) allows a user (not the library!) to make a copy if:

(1) the copy… becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and

(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.

This approach turns on TWO VERY IMPORTANT things: 1) no awareness that the original PDF is creating a “commercial advantage” (like saving a licensing fee) and 2) no awareness by the library that there is a plan for “concerted reproduction” (like creating a course pack).

This is where defining the role of the academic library in creating the link is critical.

Unlike when assembling a course packet or ensuring articles available via subscription are accessible prior to listing them on the syllabus,[8] UBUPEAA should only be listed in the collection as available—not prepared for organized dissemination.

And now, I have to set out a very clear disclaimer.

This is NOT a work-around for making articles available without purchase or a license! Remember that the library must be confident that the PDF was not created in a way that creates a “commercial advantage”; if a copy or a subscription is available, this is NOT the solution!

How does this play out in the real world? If a library happens upon a scan of an article published in 2020 with a clear copyright notice published by a readily discernible source that will license it, further use of it will very likely create a “commercial advantage.” But, if a library happens upon a scan of an article it can’t locate via a subscription service, and the copyright owner cannot be discerned, the “108(a) and(d) solution” may be a good approach.

The other approach alluded to in the question—which is to make the copies available but ensure they are behind logins and thus not easily detectable by owners who might be trying to ferret out infringement—is not an allowable use but rather a type of risk management.[9]

For a state institution that is arguably newly immune from copyright liability,[10] this risk might be one the institution wants to take.[11]

For a private institution that is unquestionably subject to the jurisdiction of the federal courts for copyright infringement claims, this risk is much higher and should simply not be taken.

So where does this leave us?

The member asked: If we publicly offer to remediate (as best we can) published content that we do not subscribe to or own so that faculty can place an accessible version of them in their course shells, are we violating copyright?

The answer is “very likely yes.”

But if the question is:

If we publicly offer to remediate (as best we can) published content that we cannot otherwise subscribe to or own and place it in our collection, are we violating copyright?

The answer is, “with proper care, no.”

A heuristic for deciding to add UBUPEAA to a library’s collection would be:

1. Are we aware that or are there clear signs that the PDF was made/obtained illegally?
2. Is there a readily discernable copyright owner or licensing agent we can ask for permission to make/access the copy?
3. Is there an easily determined, reasonable cost to otherwise obtaining the content of the PDF?

If the answer to any of these questions is “yes,” the PDF might not just be UBUPEAA; it could also be an IFALS.[12] But if the answers document that there is no “commercial advantage” to using the PDF, making and hosting a copy as allowed by Section 108(a) and adding it to the collection, for use as any other library item under Section 108(d), is feasible.

Thank you for a great question!

Before we dive into this question, there are few fundamentals to review.

FIRST: Any institution publishing content like a student newspaper should have a “DMCA Agent” where notice of alleged infringement can be sent.[1] This allows a publisher of online content to enjoy “safe harbor” (meaning safety from certain claims of infringement).

If you would like to see if your institution has this, you can check it out at: https://www.copyright.gov/dmca-directory/

SECOND: Okay, that’s great, but of course, the publisher of a college/university student newspaper is usually the school, which is also the owner of the website. Can a publisher have “safe harbor” from itself? Not really, but the third party contracted to host the content can.

THIRD: While the “legacy media” landscape—including the horizon where student newspapers sit—is rapidly evolving, all student publications should still be teaching student journalists and editors how to used appropriately licensed images, or to document when an image is used under a claim of “Fair Use.”

The record of the license or the Fair Use analysis should be retained for at least seven years after publication.

Of course, none of that is helpful to the present situation, but it is important background context!

And with that, let’s answer the question: is it advisable to leave the collection in NYS Historic Newspapers and continue adding to it, or should we plan to take it down and only digitize future copies for in-house preservation purposes?

To answer this, the library (which is part of the college, too) can work with the advisor and student leaders of the paper to ensure the proper documentation regarding licensing and Fair Use is being generated and retained.

The goal of the collaboration should be to educate the student journalists about proper permissions and Fair Use as well as to ensure that the library can continue to properly archive the paper as it has done for almost a century.

This achieves two things: first, the students will learn about this evolving and ever-critical consideration in journalism and creative work. Second, it will position the college and any third-party provider to easily resolve (as in, tell to go away) copyright claimants in the future.

When the college knows that the licensing and Fair Use documentation is being routinely put in place, it can proceed with both the internal archiving and the external archiving.

This sounds a bit arduous, but it boils down to:

1. Set up a meeting with the student newspaper.
2. Discuss the importance of the archives.
3. Discuss how important licensing and fair use is for archiving and day-to-day operations of the paper.
4. Make sure the newspaper has and is following policies for Fair Use and licensing.
5. If you feel like going the extra mile, ask for how much insurance coverage there is for copyright infringement! The insurance policy’s requirements will support adherence to Fair Use and licensing policies.

If things can’t happen that way (because major meetings and policy development don’t always magically happen in a given semester), the fallback is the library’s selective redaction of the content online, with a note on how the content can be obtained in hard copy. “Due to a DMCA claim, this image is not available via our online archive. To obtain access to the originally published content, which has been retained by the publisher in hard copy to ensure archival integrity, contact EMAIL, and it will be evaluated under 17 U.S.C. 108.”

Thank you for a great question!

To give readers a bit of context about my answer to this: between 2006 and 2017, I was an in-house attorney at a university.  During that time, I hobnobbed with a lot of other higher education attorneys; first, because the hobnobbing helped keep us current in our practice, and second, because attorneys--like murders of crows or parliaments of rooks--are social creatures, who just need to talk about the law.

One of the many higher education/law topics that could turn a flock of lawyers into a full-fledged symposium was the issue of what is meant by the term "faculty."[1]

Are adjuncts "faculty"?[2]  Are grad student instructors "faculty"?  If a full-time staff member teaches a course or two, are they "faculty?"

Complicating the issue is that the definition of "faculty" will vary from institution to institution, based on union agreements and accreditor criteria--to say nothing of state law and regulations.

And finally, a wrinkle can be created when a "faculty" member leaves regular employment with a college or university, but assumes a new (and often under-defined) status, such as:

• Retired faculty (whose retirement is governed by contract or policy)
• Retired faculty with honorary title "Emeritus" (a title which may or may not convey benefits)
• Terminated but "consulting" faculty who have a formal continuing affiliation with the institution (by contract or policy)
• Terminated but "proximate" faculty who don't have a formal continuing affiliation with the institution, but for whatever reason, may retain the trappings of their former affiliation (network access, library card, the computer they used when they were employed, etc.).

This issue of undefined status is the type of topic that will occasion lots of discussion and perhaps another round of potables at a lawyer’s kettle.[3]  Why the fuss?  Examples exactly like the one brought up in this question.  Lawyers hate it when we can't put things into minutely defined boxes to process through a legal formula (after all, the order we impose by doing so is the entire reason for our professional existence).[4]

Here are some examples of what "disorder" a clause like those in the question is meant, by the content provider, to avoid:

• The licensed content access flowing to any person with privileges at the institution's library (since many institutions allow community members to get cards);
• The licensed content access flowing to a large body of people affiliated with the institution, such as alumni or boosters;
• The content access flowing to groups or people with only a loose association with the institution (for instance, sometimes student clubs are open to community members); and
• Any other way the institution could allow access that could deprive the licensor of revenue.

Of course, just what is barred, and how "former faculty" access could violate it, is highly fact-specific.  So let's take a look at the member's specific question:

...we have more than 20 licenses that state in one way or another "current faculty" only.  I would take that to mean that former faculty, regardless if the institution allows them to keep their credentials for a year after termination, would NOT be legally allowed to continue to access those resources.  Am I right?

Yes, you're right: if a faculty member is terminated and has no ongoing affiliation as a faculty member (even a tenuous affiliation, such as an honorary appointment or "emeritus" designation, which could give some slim justification), then there is no basis to claim they are "current faculty."

In my experience talking with aeries of higher ed attorneys, the most common way this type of concern is raised is when a faculty member is terminated, and asks to take their institutionally-issued laptop computer with them (often because it is the sole computer they have)--continuing access to servers and databases that would otherwise be cut off.  Many places want to do the nice thing and say "yes," but there's a catch: the institutionally-issued computer usually has proprietary software and access that is only available to (you guessed it) current employees.  (In addition, if the faculty member was teaching, it might house a lot of content protected by FERPA.  So, this question of ongoing access to content only licensed for use by current employees is often the tip of a big compliance iceberg.)[5]

But at this point, I have passed from answering the question (remember?  The answer was "Yes!") and moved onto the practical considerations.   Practical considerations, of course, are where many of the devilish details reside, but having answered the question, we'll leave it there for now.

Hopefully, this answer from within the conclave of the higher education law has provided some assistance and clarity.  I wish the member well; raising this type of contract compliance concern, which can cut across departments at a college or university, is rarely easy, but it's the right thing to do for an institution.

Thanks for a good question.

[1] Other hot topics that guaranteed a searing debate included: how to negotiate contracts with musical acts, how to build support for meeting accreditation requirements into institutional policy, and the ups and downs of enforcing campus parking policies. 

[2] Yes, and damn important faculty, too.

[3] Yes, I had fun looking up the proper titles for flocks of birds. https://www.thespruce.com/flock-names-of-groups-of-birds-386827

[4] That, and to provide endless fodder for television dramas, based on our glamorous lifestyle and impeccable fashion sense.

[5] If the problem is caused by retention of a computer post-termination, the best way to address it is through a policy that manages this type of situation up-front. For such a policy, there are really only two options: wipe the licensed content and all institutional information from the computer before the former faculty member is allowed to keep it, OR make it clear that institutional computers cannot be transferred after termination (neither of these solutions, of course, is likely within the authority of the institution's library staff to implement.  Having a good working relationship with a head academic officer, and/or HR, can allow you to flag this issue to people in a position to do something about it.).

Your understanding is correct, but there are three additional details it is helpful to consider in this type of situation:

First, when a school confronts a concern like this, it should take a careful look at the license (the permission to use a copyright-protected composition) it purchased. 

This is because a license for sheet music can convey not only permission for on-site performance and broadcast, but also "recording" and "publishing" (posting).  I have observed that the range of these permissions will vary not only between publishers, but even between songs at the same publisher.  So, before recording (or deliberately not recording), check the fine print; you might have more (or less) permission than your district thought.

Second, it is good to consider why the school wants to make the recording and post it on the school website.  Is it to simply showcase the band on a page dedicated to the school's achievements?  Is it for fundraising purposes?  Or is it posted as part of a student newspaper or student club newscast?  If the post is part of an academic endeavor--especially one related to commentary or gathering news--posting part of a recorded performance could be a fair use. 

And third--though still on the topic of fair use--it is important to remember that "Circular 21" pertaining to "Reproduction of Copyrighted Works by Educators and Librarians" confirms that the Copyright Act allows educators to make:

"A single copy of recordings of performances by students...for evaluation or rehearsal purposes...."

Now, under no circumstances am I saying that this provision gives a school permission to record and publish (post) a copyright-protected musical work.  But a copy that is created incident to streaming[1] can be retained by the school or teacher, and perhaps posted to an intranet, if they plan to use it for rehearsal or evaluation later. 

The important take-away from all of these is: your school may have options from not only within but additional to the license.  By assessing the precise permission your school received, the reasons for recording, and the reasons for posting, a school can consider their full range of options.[2]

Of course, what copyright law can give, contract law can take away.  So, if your school has secured a license with a specific agreement that you will not make and post a recording, remember that's a contract term it agreed to, even if fair use would otherwise authorize the use.[3]

I know, I know, thinking about copyright while planning to make the most of a performance can feel like allegro, adagio, adagio, allegro...

Just andante, like the question models, plan what you need, and you'll find a good pace!
Thank you for a thoughtful question.

[1] I know "streaming" and "recording" are different, but as a technical matter, "streaming" does create a digital copy, even if it is fleeting.

[2] This answer does not consider limited posting on an intranet, although I'd argue that with planning such posting could be consistent with the CONTU guidelines for retaining a copy for rehearsal or evaluation.

[3] This is why people negotiating for license content should always be trained to not negotiate away rights your district has by law.

My favorite DJ-related story is about how "scratching" a record,[1] as both a musical instrument and an act of composition, evolved in the hip-hop scene of the late 1970's and early 80's.[2]  It is a story of technological innovation, of community culture, and (as all good stories are) controversy.[3]  DJ's, like all contributing figures to culture, make for compelling scholarship.  So I am not surprised to see this question about audio-visual content portraying a DJ on a library archive.

The short answer is: sure, it could be a violation; but there are five things that can keep it on the right side of the law—or at least mitigate the risk if there is an unintentional violation.

Here are those five "things":

First thing

Is the posted video part of a well-developed and organized collection or archive?

If "yes," go on.

Second thing

Does the metadata on the unique video reflect that it is part of a well-developed and organized collection?

If "yes," go on.

Third thing

Is the music part of a recording of an event, or is the music a separate track with all other ambient sound (the crowd, street noise, the DJ talking over the music) removed (or never there)?

Even if "no" go on, but have the next two really, really tight.

Fourth thing

Has your library[4] conducted and documented[5] a "fair use" analysis[6]  of its posting of this particular content, and to the best of its ability, reflected accurate ownership of the item in the metadata and item information on the archive?

If “yes,” go on.

Fifth thing

Does your library have a "notice and takedown" contact point posted on its website, so anyone who believes the content is an infringement can complain, AND has your library registered[7] for "safe harbor" under the Digital Millennium Copyright Act?[8]

If "yes," DJ on!

Why do I have to do the "5-step hustle" to answer what seems like a simple (if compound) question?  Because how and why content is used can transform "infringing use" to non-infringing "fair use."  For a component of a scholarly or historic video archive, this means being able to show that a musical recording incorporated into an audio-visual record is not merely a gratuitous use of the audio content, but rather, a critical element of a work that transcends (and doesn't simply replace) the purpose of the original. 

This is, in some ways, a tall order.  But if you follow steps "1" through "4" above, you significantly increase your likelihood of getting it right. And as for step 5: the DMCA has been in the news, recently, as a part of the national info-tech infrastructure that is due for an overhaul.  But for now, it can protect certain kinds of service providers (like search engines, directories, and other information location tools) from liability for third-party infringement, and it is an essential part of any information database's copyright compliance toolkit.

Thank you for a good question.

[1] Which makes a sound like either "schkud-shckud-shzyaaa" or "hschhzka- hschhzka-zreek" depending on how you translate it into onomatopoeia, along with the skill and intent of the person doing the scratching.

[2] According to his tag in the Cornell University Hip-Hop Collection, scratching was invented by Grandwizzard Theodore.  However, there is some assertion that Grandmaster Flash put Theodore on the path to the scratch.  Either way, it is a good story.

[3] If you are looking for a new era to get obsessed with, early Hip-Hop is a good one.  It is replete with geniuses, scandal, and triumph—and provides insight into cultural and community factors relevant to today.

[4] This 5-step analysis assumes your library is a not-for-profit educational institution (like a public library).

[5] As in: done the analysis in writing (generally a form), and retained the form.

[6] From 17 U.S.C. Section 504(c)(2): "...The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords..."  Of course, making video "available" can be considered a transmission under certain circumstances (like streaming), so make sure your "fair use" conclusion is solid.

[7] Your institution can register for "safe harbor" in some instances (when it is more of a "provider" than a "publisher") here: https://www.copyright.gov/dmca-directory/

[8] I like the way Creative Commons does it: https://creativecommons.org/dmca/

There are four ways it can be permissible:

1.  Check the license[1] from the publisher and see if the purchase of the physical copies came with any digitization/duplication permission.  You'd be surprised how many rights you buy (or don't buy) when you make that hard copy purchase.  Publishers take a variety of approaches on this, and an individual publisher's permissions may change from work-to-work, so confirm (or rule out) this approach for each work.

2.  If the license does not allow making digital copies, contact the publisher, and see if it can be expanded.  Publishers are now getting many requests like this and may be ready with a simple (and affordable) solution.

3.  I am not a fan of them (they are as outdated and as risky as the Ford Pinto), but the "CONTU" guidelines speak to this issue.  I am including the relevant guidelines, as presented in Copyright Office Circular 21, under this answer.  If one of your precise needs fits one of the "permissible uses" listed in Circular 21, you are all set.

4.  Speaking of CONTU, the first "permissible use" listed in the guidelines may help you out here, with a slight twist on your scenario.  In the event that the physical copies listed in the question are mailed out and not returned as feared, the guidelines allow for emergency copying after the fact (of course, they also require that at some point, you purchase more physical copies, but at least you can get the copies to the students).

Those are my four solutions, based on conventional approaches and current case law.

I'll also throw out a "fifth option" based on a slightly different approach, which, depending on some precise facts, could work for faculty teaching choral classes:

The 110 Solution

Copyright Section 110 allows an academic choral group (if meeting as part of a class) to display "a work in an amount comparable to that which is typically displayed in the course of a live classroom session," during an online class/rehearsal.

How can that help with the member's scenario?

Let's say I am in a class that is working up an a capella performance of "36 Chambers,"[2] as arranged by the composers of the original work.[3]

If the class was still meeting physically, Copyright Section 110(a) would allow us to perform the song and to display the music on the in-class smart board.  In the online environment, the same performance and display could happen via the internet, as allowed by 110(b) (the "TEACH Act")—again, so long as only the amount "typically" displayed in class was shown. 

Whether in-person or online, the rehearsal would include review of the different parts for bass, tenor, alto and soprano,[4] with the relevant music displayed on the screen.  While an academic institution can't tell people to take screen shots of the music displayed for rehearsal purposes, students who want to snap screenshots of a class to take notes is a fact of modern-day academia.  If a student who was told to purchase a copy of their part uses this method to ensure they are practicing on an incremental basis, that's out of the school's control, and the student can make their own claim to fair use.

This type of solution should never be used as a deliberate alternative to the purchase of individual copies.  But so long as the display is incremental and truly a part of the in-class experience, it is a viable option.

I wish all music faculty approaching the Fall 2020 semester many good performances, whether virtual, or face-to-face.  These are tough days for people who love to sing, who enjoy the community of a choir, and who need to hone their vocal art in collaboration with others.  Hunting for music should not add to the burden, and with a few tricks and an awareness of the limits of the law, it doesn't have to.

------------------------

Guidelines for Educational Uses of Music

The purpose of the following guidelines is to state the minimum and not the maximum standards of educational fair use under Section 107 of H.R. 2223.

The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future, and conversely that in the future other types of copying not permitted under these guidelines may be permissible under revised guidelines.

Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.

Reproduction of Copyrighted Works

Permissible Uses

1 Emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.

2 For academic purposes other than performance, single or multiple copies of excerpts of works may be made, provided that the excerpts do not comprise a part of the whole which would constitute a performable unit such as a section¹, movement or aria, but in no case more than 10 percent of the whole work. The number of copies shall not exceed one copy per pupil.

3 Printed copies which have been purchased may be edited or simplified provided that the fundamental character of the work is not distorted or the lyrics, if any, altered or lyrics added if none exist.

4 A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or individual teacher.

5 A single copy of a sound recording (such as a tape, disc, or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher. (This pertains only to the copyright of the music itself and not to any copyright which may exist in the sound recording.)

Prohibitions

1 Copying to create or replace or substitute for anthologies, compilations or collective works.

2 Copying of or from works intended to be “consumable” in the course of study or of teaching such as workbooks, exercises, standardized tests and answer sheets and like material.

3 Copying for the purpose of performance, except as in A(1) above.

4 Copying for the purpose of substituting for the purchase of music, except as in A(1) and A(2) above.

5 Copying without inclusion of the copyright notice which appears on the printed copy. (iv)

Discussion of Guidelines

The Committee appreciates and commends the efforts and the cooperative and reasonable spirit of the parties who achieved the agreed guidelines on books and periodicals and on music. Representatives of the American Association of University Professors and of the Association of American Law Schools have written to the Committee strongly criticizing the guidelines, particularly with respect to multiple copying, as being too restrictive with respect to classroom situations at the university and graduate level. However, the Committee notes that the Ad Hoc group did include representatives of higher education, that the stated “purpose of the … guidelines is to state the minimum and not the maximum standards of educational fair use” and that the agreement acknowledges “there may be instances in which copying which does not fall within the guidelines … may nonetheless be permitted under the criteria of fair use.” The Committee believes the guidelines are a reasonable interpretation of the minimum standards of fair use. Teachers will know that copying within the guidelines is fair use. Thus, the guidelines serve the purpose of fulfilling the need for greater certainty and protection for teachers. The Committee expresses the hope that if there are areas where standards other than these guidelines may be appropriate, the parties will continue their efforts to provide additional specific guidelines in the same spirit of good will and give and take that has marked the discussion of this subject in recent months

[1] Checking a license is not an exact science.  Some publisher's use a catch-all that is included on their invoices.  Others put the information right on the music.  Others like to make you really hunt for it, but it is usually part of the sale transaction.  This is why, when making a purchase of music, it is good to take a screen shot or save the paperwork related to the purchase.

[2] Note: To my knowledge this work does not exist, but it is on my wish list of music to hear.  I love it when genres collide.

[3] This new version would be a "derivative work" based on the original, and have its own copyright protection as a musical composition.

[4] We have reached the limit of my choral knowledge.  Is there separate sheet music for mezzo-soprano and counter-tenor?  Probably.  I am sorry, I quit choir in 7th grade.

[NOTE: This answer is part of our ongoing response to institutions moving to online instruction as part of the world’s response to COVID-19.  For additional Q&A on that, search “COVID-19” in the Ask the Lawyer search utility.]

“Teachers Pay Teachers” (“TPT”) is an interesting service that allows teachers to license (sell rights to) others who need customized lesson plans and educational material.[1]

The member’s question relates to the TPT license, which governs what individuals and organizations can do with the content.

If the member’s question is asking: does the TPT license allow us to print and distribute the materials in hard copy for packets sent out by the District?  The answer is generally: yes.

If the member’s question is asking: does the TPT license allow us to distribute the materials electronically using e-mail or a website or a Learning Management System? The answer is generally: it depends.

I spent some time on TPT’s website reviewing their “Terms of Service”[2] and I believe teachers and organizations will need to examine the license for each separate purchase to confirm that electronic distribution is allowed.

Why? TPT’s “Terms of Service” largely allow for the creation of hard copies,[3] but their default conditions bar online distribution.  HOWEVER, TPT also allows the teachers supplying the content to loosen those default restrictions[4] (including allowing distribution on the web[5], e-mail, etc.)…so while one lesson purchased from TPT might not allow a web or e-mail distribution, another might. 

This can change not only from author to author, but content to content, so it is important to read the fine print.[6]

I would add: these are early days in the pandemic response.  As of March 26, 2020, TPT did not have any expressly Covid-19 policies on its website.  Nevertheless, like other online and tech providers, they may realize their hour has come, and take action. 

What will that action be?  I can’t say; a crisis brings out the best and the worst in businesses.  Some businesses will try and simply profit from the current situation; others will dig deep, conclude we are all in this together….and try to find at least middle ground. 

Looking at their Terms, Teachers Pay Teachers has made commitments to individual content providers it cannot easily change on a dime.  But remember, TPT empowers its individual content providers to set their own terms—so long as those terms are more liberal that the TPT baseline.  So keep your eyes on those product-specific, unique terms of use.  I imagine many teachers will feel compassion for the teachers and students impacts by this public health emergency, and liberalize their restrictions.

Thank you for this important question.

USING LICENSED CONTENT TIP: If you or your institution conclude that TPT or another license does give you permission for electronic distribution, it is a good idea to take a screen shot of that license and save it (just e-mail it to yourself in a place where you know you’ll have it for 3 years after you’re done use the content).  Online content providers can change the terms they post, without warning—and you want to be able to show that on the day you made the call to share the content electronically, the licensor allowed you to do so.

[1] Because some educational institutions own the rights to teacher-generated materials, and some do not, the Teachers Pay Teachers model is a fascinating study in copyright issues—but a global pandemic is not the time to muse over that.

[2] As of March 26^th, 2020: https://www.teacherspayteachers.com/Terms-of-Service

[3] The Terms of Service allow you to: “Print and make copies of downloadable Resources as necessary for Personal Use. Copies may be made and provided to your students, classroom aides, and substitute teachers as necessary. Copies may also be made for students’ parents, classroom observers, supervisors, or school administrators for review purposes only. Hard goods and video resources may not be copied, shared, or otherwise reproduced.” [emphasis added]

[4] But not further tighten them.  Like I said, a really interesting model.

[5] For instance, one license I looked at, for a chemistry class, said: “These resources may not be uploaded to the internet in any form (including classroom websites, personal web sites, Weebly sites, network sites) unless the site is password protected and can only be accessed by the students of the licensed teacher.”  In other words: yes, you can distribute them electronically, if you use a restricted system!

[6] The diversity of author-specific permissions I saw on TPT was really interesting. Some folks just want credit.  Others want you to not send the content, but drive people to their own personal listings (so their analytics show the hits).  I bet some, in the coming days, will even change their permissions to respond to the pandemic with compassion.

I am a hands-on kind of lawyer.  When I do a real estate deal, I visit the property.  When I advise a historic preservation group, I drag my kids to see old houses.  When I represent a bakery, I try not to pack on an extra five pounds, but it’s always touch-and-go.

So, when this question came in, I hopped on SpringShare and checked out their product description for LibGuides, and pretended I was going to write one.  I delved into the license terms and the mechanics of the utility.  I observed how their various products work together, or a la carte.

On the SpringShare website, LibGuides is summarized this way:

“LibGuides is an easy-to-use content management system deployed at thousands of libraries worldwide. Librarians use it to curate knowledge and share information, organize class and subject specific resources, and to create and manage websites.”

I checked in with a few librarians I know (one of whom works in my office), and they reported that yes, the product is widely used and popular.  While mine was a very unscientific survey,[1] the  day I hopped on, SpringShare’s web page boasted participation by “6,100 libraries” and “82 countries” and “130,300” librarians.

I noticed a lot of legally interesting things when I was down the SpringShare rabbit hole, but I what I focused on was the member’s question: is there a legal concern related to attributions of LibGuides content?

I started with the LibGuides License,[2] which states:

OWNERSHIP OF DATA: Licensor does not own any data, information or material that you submit to the Software ("Customer Data").

In other words, SpringShare (the licensor) confirms that the subscriber (the licensee) owns the content they put on LibGuides.

The License then goes on:

You, not Licensor [remember, Springshare is the “Licensor”], shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Licensor shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.

This means that while the licensee (the subscribing librarian or library) owns the content, they are also responsible for the consequences created by any content they don’t have the rights to (infringement claim, violation of privacy claim, etc.).

This is a very typical approach for content-sharing platforms.

The License then states:

In the event this Agreement is terminated, Licensor will make available to you a file of the Customer Data in XML format within 30 days of termination if you so request at the time of termination.

Isn’t that generous?  If you remember to ask nicely at the time you terminate the contract, you (the Licensee) have thirty whole days retrieve your property.[3]

This property arrangement is at the heart of the member’s question.  SpringShare claims no ownership of the content placed on LibGuides.  That content, unless licensed from another, is supposed to be owned by the licensee (the person or entity contracting with SpringShare for the service).

But is the “licensed LibGuides user” the content owner?

That depends.

In the member’s question, the “licensed LibGuides user” was probably the library (it would be very unusual, and not business-appropriate, for an account for an institution to be in an individual person’s name).  So, the library is the one getting assured they own the content put up through the account, and the library is the entity responsible in the event the content causes a problem (infringes copyright, invades someone’s privacy, etc.).

Now this is where the issue gets sensitive.  Under copyright law, content generated by employees, AS PART OF THEIR REGULAR DUTIES, is owned by their employer—unless a contract, policy, or hire letter says otherwise.  This “default rule” is spelled out in section 201(b) of the Copyright Act.[4]

How does this play out in the work environment? It varies.  Many librarians are part of a union, which means the written work they generate as part of their job might not be subject to the above-described “default rule” (a collective bargaining agreement can change the terms of employment related to copyright).  Still others work in environments where this “default rule” has been changed through a policy, or a hire letter.

This lack of uniformity means that any librarian composing LibGuides, who wants to use their compositions after they move to another job, should make sure they know where they stand when it comes to “employee-generated intellectual property.”  Does their workplace follow the “default rule?”  Does a union contract, policy, or hire letter change the “default rule?”  And is writing a LibGuide even part of their duties?

This is critical, because depending on who owns the content, they are free to do as they like with it: keep it up, remove it, change it, update it, etc. (of course, what they do on LibGuides is limited by the License and the technology).  And it is also critical because the current configuration[5] of LibGuides seems, to me, to create a potential problem.

Now, that addressed the legal part of the question; the answer is: yes, there are some legal concerns.  But the “legal” concerns might not be the full scope of the concerns presented by the question’s scenario.  Attribution of authorship is different from ownership, but it can be a critical issue of integrity.

My understanding of how LibGuides functions is that the account holder can change the roles, authority, and people admitted to create, modify, or access the content.  Within LibGuides, subscribers have the ability to assign users (Admin users, Regular users, Editor users, Contributor users, and Patron users) with different levels of access and authority.[6]

Within this structure, “Admin users” (who have the highest level of authority over an account), manage the Licensee’s use of the service.  The settings are changeable, and different LibGuides can be assigned to different users.

But what was WILD to me is that when a librarian leaves a library, to maintain the LibGuide, the library has to assign another staffer to the Guide.  That’s fine and makes sense, but because of LibGuide’s interface, that new person is then listed as the librarian in charge of the guide, and the way the screen looks (to me) the implication is that they are the author.

I believe that is the genesis of this question; people who took pride in their creation of a LibGuide first attributed to them are now seeing (implied) authorship (seemingly) attributed to another.  I have to admit, whether I owned it or not, that would sting a little.  Writing, even if it’s for your job, can be a very personal endeavor.

This seems entirely due to the design of the interface.  Between you, me, and the Internet,[7] it seems like a needless and utterly solvable problem.  And while not necessarily a legal issue (although if the former employee owns their work, it could be) it strikes me as a serious ethics/integrity/relationships issue.

Authorship is something people take seriously, especially in the arenas of academia and publishing—worlds in which librarians play an essential role.

How can this be solved?

First, LibGuides might want to think this through and develop a solution.[8]  But until then, libraries using LibGuides should assess their legal position (do they own their employees’ work under the “default rule”?  Or does a contract or policy say otherwise?) and, think how this phenomenon rests with their values.  On the flip side, librarians who create a great LibGuide and then want to move on in their professional careers should pay attention to who is the LibGuide’s “owner” and be mindful that a LibGuide owned by their employer will not always be in their name.  Further, the mutable nature of LibGuides (they are designed to be updated, altered and changed) means you might not always want to be associated with what the Guide turns into!

Thanks for a great question.

[1] “Unalytics.”

[2] “Terms of Use” and licensing agreements can be treacherous!  Services change them from time to time.  This was posted as of 3/6/2020, but always get your contract answers straight from the source.

[3] As a rule, I try to avoid snark and sarcasm in the “Ask the Lawyer” service.  Such rhetoric doesn’t age well, and there are defter ways to be funny.  That said, this one deserves some snark.  Thirty days, and then potentially thousands of dollars of your assets are lost?  Not so great.

[4] The law reads: “In the case of a work made for hire [which includes “a work prepared by an employee within the scope [their] employment”] the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.”

[5] As of March 6, 2020.

[6] On March 6, 2020, I found these categories on the LibGuides FAQ at ask.springshare.com/libguides/faq/1119#general.

[7] Hi, SpringShare!  I am confident you can fix this!

[8] For instance, I would create a “Legacy Content and History” option for customers, where the evolving work and chain of authors could be tracked.  Of course, that would still put the ultimate fate of the content in the hands of the employer, but it would empower them to maintain good feelings between librarians.

The relationship between a person and their streaming content service is almost always[1] governed by a type of contract called a “license.”

As the members states, such a license (often accepted by clicking to accept terms left unread) can over-ride the infringement exceptions like those found in 17 U.S.C. §§107, 108, and 110.[2]

In other words, once a user voluntarily agrees to a contract restricting use of content, rights they may have once by law may become inaccessible.

Use of streaming content in the educational setting is a good example of this.  While Section 110 of the Copyright Act may allow a teacher to show a movie in class (if the movie is shown in the physical classroom and if the content is part of the curriculum), that same movie might not be accessible under the teacher’s Netflix license.

Why? Content providers change the terms of licenses all the time, but one thing is pretty constant: restricting subscription access to personal use.

Here is how Hulu puts it:

3.2 Your License. Hulu is pleased to grant you a non-exclusive limited license to use the Services, including accessing and viewing the Content on a streaming-only basis through the Video Player, for personal, non-commercial purposes as set forth in these Terms.

Netflix has a similar-sounding restriction.  Even the “Educational Screenings of Documentaries” the member references (found at https://help.netflix.com/en/node/57695) license is pretty narrow (and actually a shrewd PR move for a commercial service):

Educational screenings are permitted for any of the documentaries noted with this information, on the following terms:

The documentary may only be accessed via the Netflix service, by a Netflix account holder. We don’t sell DVDs, nor can we provide other ways for you to exhibit the film.

The screening must be non-profit and non-commercial. That means you can’t charge admission, or solicit donations, or accept advertising or commercial sponsorships in connection with the screening.

Please don’t use Netflix’s logos in any promotion for the screening, or do anything else that indicates that the screening is “official” or endorsed by Netflix.

We trust our users to respect these guidelines, which are intended to help you share and discuss our documentary content in your community.

To the extent your institution requires you to demonstrate that you have a license for your screening, please show them this page.

So there you have it: the only Netflix content that may be shown for classroom use is, as the member states, per this permission.

But (to address the other part of the member’s question) what are the consequences for not abiding by the license?  Is there a growing body of case law to show the fines, terminated accounts, and jail time[3] people are doing when they violate the terms of their streaming service license?

There is not. 

Why?  Most of these license agreements have arbitration clauses, meaning that disputes are settled without the publicly accessible process found in a court of law. 

Here is part of the arbitration clause from Netflix:

7.1. If you are a Netflix member in the United States (including its possessions and territories), you and Netflix agree that any dispute, claim or controversy arising out of or relating in any way to the Netflix service, these Terms of Use and this Arbitration Agreement, shall be determined by binding arbitration or in small claims court. … Arbitrators can award the same damages and relief that a court can award…. [4]

So there may be a number of instances where a license has been violated, and Netflix has sought “…the same damages and relief that a court can award” via arbitration.  But I don’t have access to that information.  Most of us just don’t know.[5]

I do know, however, that violating a license is wrong, and can have consequences. [6]  Further, I would hope that in the educational setting, modeling casual disregard for personal contractual obligations is not encouraged.

Teachers are usually barred by the contract from streaming Netflix services from their personal account in the classroom.  Unless there is an express license to the school from a streaming service, or for a particular film, I encourage teachers to obtain physical copies of films/DVD’s from the library, and play them in class on a good old-fashioned TV and DVD player, as Section 110 of the Copyright Act allows them to do. 

Thanks for this perceptive question.