Who Owns the Music?

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A close look at CDs and students' original compositions

By Carrie Russell -- School Library Journal, 01/01/2004

Some of our students have recorded their own original compositions. Since we plan to offer their music on our Web site, we've encouraged them to copyright it. But we have a question: Does a student's work belong to the individual or, since it was created as an assignment, does it belong to the school? Also, is the copyright law for creative works in institutions of higher education the same as it is for K–12 schools? —Lisa Keller, librarian, The Bush School, Seattle, WA

The students hold the copyright for the compositions that they created. If the library wants to include students' works on a Web site, technically, the school must first ask permission from the students. Traditionally, we are casual about the copyright rights associated with original works created by students. We often treat our arrangements with them as informal agreements—like a contract, we ask students to create compositions as a class requirement. In return, once students have created their works, they've successfully completed the course. There's nothing wrong with this arrangement—the course syllabus lays out the terms of the contract.

In this case, you are formalizing the fact that students create original works that are copyright protected. Students can register their works, but then ultimately make a contractual agreement with the school. In other words, they are assigning certain rights of copyright to the school.

In higher education, the university (or its governing body) owns some works created by faculty and researchers. This is true, in part, because they are paid or otherwise compensated by the university to perform such work. If the university tells the faculty or researcher what work they should create (for example, conduct research on vitamin C) and if university facilities and funds are used to support the creation of that work, it is likely to be owned by the institution. In general, creations that spring from faculty members' own minds, such as class materials, teaching tools, articles for scholarly journals, and conference presentations, belong to those faculty members—unless, of course, they assign their copyrights to someone else, such as the publisher of a journal.

One of our teachers has been asked to burn a compilation CD for our holiday prayer service. I thought it was illegal to make anthologies from various CDs. But if each selection is no longer than 30 seconds, is this a fair use? —Ann Weber, director of library and research services, Bellarmine College Preparatory, San Jose, CA

Fair use allows one to exercise a copyright — in this instance, copy a portion of a CD—without the prior permission of the copyright holder. To determine fair use, we need to look at four factors: the purpose of the use (Do you want to make a copy of the work for profit or nonprofit, educational purposes?); the nature of the publication (Is the work already published? Is it a highly creative work?); the amount of the work that will be copied (in general, less is better than more); and the effect of the copy on the work's market (Has the work been lawfully acquired or is it being copied to avoid purchasing it? Will the copy be used to establish a revenue-generating venture? Will the copyright holder lose financially?).

In my opinion, this use is fair. But ultimately, librarians need to make their own fair-use determinations and develop their own opinions. Librarians should be more than just familiar with copyright law. Understanding copyright is part of our job. It's our social responsibility to be copyright leaders, for the sake of our users' best interests as well as for copyright holders'.

It's not necessarily an infringement to make a compilation CD. For example, an individual may make a compilation CD from CDs that he owns. This is a personal fair use. Making compilations to sell and broadly distribute or upload to the Internet is another matter and almost certainly an infringement. Creating a course pack (another type of compilation) without the prior permission of the copyright holder may also be problematic. Courts have ruled that creating a course pack and selling it for profit is an infringement. Making compilations of public domain works, on the other hand, is absolutely legal—one can even profit from them.