The Skinny on Sampling

Our students use music from commercial CDs in their multimedia productions. It's my understanding that students are allowed to use a 30-second music clip in PowerPoint presentations. Can students use more than 30 seconds of the recording if the CD has been legally purchased? The PowerPoint presentations are used in the classroom and, occasionally, at an awards banquet. Also, how do my students go about writing artists for permission to use their songs?

Debbie Figueroa, English teacher and staff developer
Hamilton-Sussex (WI) High School

Depending on the specifics of the situation, students may lawfully copy clips without permission. I think the uses you describe would generally be considered fair uses, although whenever a copyright is used outside of a nonprofit educational setting, one should be cautious. There may be instances where the same multimedia presentation may be lawful in the classroom but not lawful at an awards banquet.

The law does not quantify fair use: the "30-second rule" is just an arbitrary fair use guideline. Guidelines, such as the multimedia guidelines developed by the Consortium of College and University Media Centers, have been developed to help make fair use more understandable. But don't rely on them as hard and fast lawful rules. Remember, guidelines have been written to define the minimum of what is (supposedly) lawful, not the maximum. So, 31 seconds is not necessarily an infringement even though 30 seconds has been listed as the guideline. In rare instances, using the entire song may very well be a fair use when one considers the four factors of fair use as described in the copyright law.

If you determine that the copying of music clips goes beyond fair use, getting permission to copy can be difficult. Frequently, multiple parties hold copyright to different aspects of the work—the performance itself, the recording, and the actual author of the song. It may be necessary to contact the recording company, the owner of the song, and the performers. I would start by contacting the record company, and then performing rights societies, such as ASCAP (American Society of Composers, Authors and Publishers) or BMI (Broadcast Music, Inc).

I have been told that when school libraries purchase CD-ROMS, such as Encarta, we are actually purchasing the license for the software. Assuming that's correct, would it be okay to copy an Encarta disk if a student loses one, as long as the number of Encartas in use does not exceed the number of licenses we've purchased?

Eileen Wilson, library media technician
Wilma Cavitt Jr. High School, Eureka, CA

If your library has acquired the CD-ROMs through a licensing agreement, copying the disks would depend on the terms of the license. A license for acquiring materials defines what rights and responsibilities the library has regarding the licensed materials. Licenses are different than copyright law (although you may be asked to sign a license when requesting to exercise a copyright from the copyright holder). Licenses are based on contract law, not federal law like copyright. One cannot assume that a license would include the same user rights as the copyright law offers. Savvy librarians who negotiate licensing agreements should try to include copyright exemptions like fair use in their licensing agreements.

My assumption is that your Encarta disks are loaded on library computers and that the library has purchased x number of "uses." If you lose one use (in other words, a disk), your license has not changed and still applies to the same number of uses you originally negotiated. It makes sense that you should retain the number of uses (disks) licensed throughout the term of the license, but check with the vendor or publisher before you make copies. The publisher may not want the library to freely copy the CD-ROMs. Your license probably indicates whether you can make copies or not, and whether or not you have to pay for replacement copies.