[Smt-talk] MIDI Files and Copyright

Victor grauer victorag at verizon.net
Wed May 26 09:10:37 PDT 2010

At 05:46 PM 5/25/2010, Nicolas Meeus wrote:
>I think that one must make a difference between 
>rights (a) on the music; (b) on its (printed) score; (c) on its performance.
>– So long as the music itself is under 
>copyright, any unauthorized reproduction, be it 
>as score or as performance, is illegal. Even 
>short quotations for scholarly or educational 
>purposes usually are not allowed (which, let me add, is a scandal).

This isn't completely accurate, at least as far 
as US laws are concerned. Here is an excerpt from 
the US Copyright office website http://www.copyright.gov/fls/fl102.html:

"One of the rights accorded to the owner of 
copyright is the right to reproduce or to 
authorize others to reproduce the work in copies 
or phonorecords. This right is subject to certain 
limitations found in sections 107 through 118 of 
the copyright law 
(<http://www.copyright.gov/fls//title17>title 17, 
U. S. Code). One of the more important 
limitations is the doctrine of “fair use.” The 
doctrine of fair use has developed through a 
substantial number of court decisions over the 
years and has been codified in section 107 of the copyright law.

Section 107 contains a list of the various 
purposes for which the reproduction of a 
particular work may be considered fair, such as 
criticism, comment, news reporting, teaching, 
scholarship, and research. Section 107 also sets 
out four factors to be considered in determining 
whether or not a particular use is fair:
    * The purpose and character of the use, 
including whether such use is of commercial 
nature or is for nonprofit educational purposes
    * The nature of the copyrighted work
    * The amount and substantiality of the 
portion used in relation to the copyrighted work as a whole
    * The effect of the use upon the potential 
market for, or value of, the copyrighted work

The distinction between fair use and infringement 
may be unclear and not easily defined. There is 
no specific number of words, lines, or notes that 
may safely be taken without permission."

Technically, therefore, under fair use 
guidelines, relatively brief portions of 
copyrighted text or music can be reproduced, 
under circumstances consistent with the standards 
provided above.  And I know of no case in which 
anyone has actually been sued for such use, under 
such standards, though I could certainly be 
wrong, and would welcome any counterexamples 
anyone is in a position to provide.

The scandal is not that fair use policies are not 
a part of the law (at least in the US), but that 
the law is written in such a vague manner that 
many of us are intimidated into going to a great 
deal of trouble to obtain permissions where such 
permissions ought not be necessary. This is an 
inconvenience for both the person requesting the 
permissions and the copyright holder, who very 
often never even bothers to respond. For anyone 
associated with an institution, this becomes even 
more of a problem, since the lawyers for such 
institutions will invariably warn administrators 
that the possibility of a lawsuit always exists, 
which is true. And there is always a danger that 
a lawsuit could be initiated purely out of spite, 
especially if the work is being excerpted as part of a critique.

What it amounts to is a violation of academic and 
scholarly freedom, which should also be protected under the law.

Victor Grauer
Pittsburgh, PA, USA

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