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Appendix i: Music and copyright questions and answers

  1. Copying text and music: What is, and what is not, legal?
  2. Copying other media (CD, TV, tapes, etc.) What is, what is not legal?
  3. Concerning the duration of copyright
  4. How to make legal copies; some alternatives to copying
  5. Consequences and penalties

 

A. Copying text and music

Q 1. Can 1, without breaking a copyright law, copy a contemporary score if it is for my use only?

No. Only a small portion of a work may be so copied, and it must be for research, private study, criticism or review, and certainly not for public performance.

Q 2. If I copy a couple of pages from a contemporary score for my private study or research am I breaking copyright law?

Probably not, providing the whole score is considerably longer than two pages and therefore you are copying a non-significant amount of the score, and it is strictly for your own private study or research. This would likely be considered "fair-dealing".

Q 3. Instructor. If I photocopy a couple of pages of a contemporary score for each member of my analysis class am I breaking copyright law?

Very definitely, as the law envisages a SINGLE copy, which must be for your own private study. There is no legal exemption for universities when it comes to copying for class use; this practice deprives the publisher and composer of revenues.

Q 4. Instructor. Can I make photocopies of an old score of a Beethoven sonata for my class or am I breaking the law?

Generally, copyright runs out fifty years after the death of the author. The Beethoven estate and the publisher no longer hold the copyright to his scores. The same would not be true of a Stravinsky score. However, making even a single photocopy copy of a recent score of Beethoven's music is liable to be in contravention of the law, as, although notes and staves are not protected under the copyright act, ANY editorial markings, art-work, performance or interpretive markings could well be deemed to be protected. A contemporary publication of early music, even devoid of apparent editorial markings, could be held to be protected by copyright as very likely a good deal of personal interpretive thought is reflected in the transcription. Additionally, you would not be engaging in "fair dealing" were you to copy this work, as you would be taking money not only from the publisher, but from the pocket of the transcriber.

Q 5. I am a professional accompanist, and I find page-hmis a real bother. Do I have to buy a whole score, dismantle it and tape in usable page turns, or can I legally make copies to tape in where page-tums are problematical?

Providing you have a legitimate score to begin with your actions would be considered "fair-dealing". The same reasoning would apply when replacing damaged or tattered pages in a book or score.

Q 6. I play in a quartet. The quartet owns or rents a copy of the score and parts when we are preparing music for a public performance. As we do not want to damage the original materials, we each make a copy of our individual parts which we carry around in our instrument cases, and rehearse from. We always perform in public from the original parts. Is anything illegal here?

Probably! The line between a nonsignificant and significant portion of a work is not defined in the copyright act. However, as long as you are using it for private study (practice) there is probably little chance that you would be challenged successfully. (Note that the leader of your quartet certainly can not photocopy these pages for you legally, unless permission from the copyright holder has been obtained) The problem comes in when you rehearse, as it is no longer "private study"; usage of it contravenes the copyright act.

Q 7. If I make a photocopy copy for the judges of the music which I will perform for my audition am I breaking copyright law?

Not necessarily. If the composer has been dead for at least fifty years and the edition is sufficiently old that editorial and other markings are out of copyright (also fifty years), then it is likely legal. Otherwise it is certainly illegal. Be sure to check with the institution for which you are auditioning. Some institutions state explicitly that legitimate copies must be obtained, i.e. purchased or borrowed, for auditions. And NEVER audition or perform in public from such reproductions.

Q 8. I ordered music for my ensemble but it had not arrived by rehearsal date. Was I contravening copyright law when I made copies of the music until the music arrived?

Yes, very definitely.

Q 9. I am writing a work for choir and orchestra; is there a problem with setting a text as far as copyright is concerned?

Yes, there could well be a problem if the text is protected by copyright. The same limitation applies to text as to music - the author must be dead for fifty years before the material can be considered public domain. In this case you MUST ask the copyright owner (not necessarily the author!) for permission. No problem with Shakespeare etc. or the Bible (providing you use a "traditional' version.)

Q 10. I am preparing some examinations for my students and require a few excerpts taken from our class text for them to analyze. Can I print these in my exam without violating copyright?

Technically, no. Since they are not for private study nor research you can not legally make copies of them (for distribution.) On the other hand, short passages from published literary works, duly acknowledged, may be printed in an exam.

Q 11. As a student I train my ear and other skills by transcribing music from recordings, CDs etc. Is this legal?

Probably, as presumably you are engaged in private study, and you are not transmitting the copied information to anyone. Anything you copy down can not be further transmitted if the material is subject to copyright, unless permission is specifically gained.

Q 12. I am a librarian in a library which lends out scores and parts to students. I have found it necessary to make copies of the materials that I lend, as so often the scores and parts either do not come back in time for important rehearsals, or are even lost. I lend the copies rather than the originals, of course, so that there are always originally purchased materials for public performances. Am I breaking copyright law?

Unfortunately you are. You probably also have a large inventory of copied scores and parts, and this would likely not go over well in the case of a suit. Consider writing the publisher and asking for permission to make such back-up copies. If you do a lot of business with certain publishers they might well be persuaded to allow you to make back-up copies.

Q 13. Under what, if any, circumstance is photocopying of protected material legal? If one copy of a portion of a score is allowed, are many copies?

A single copy of a non-significant amount of copyright material is permitted for private study, research, criticism, review or newspaper summary. Note that whether the material is copied out by hand, photographed, or photocopied makes virtually no difference. Technically it is illegal for a person to copy a substantial amount of copyright material on a blackboard!

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B. Copying other media

Q 14. What is the legality with regards to making back-up copies of recordings, particularly vinyl records, which are no longer available and which have such heavy usage that they will be useless if not withdrawn from circulation?

Technically it is against the law. However, n-dtigation would aely be shown if you could demonstrate that you diligently searched to determine if the records had not been re-issued in some other form and that your records would otherwise be useless, and, that you had made a single copy. It would not be considered fair dealing to make multiple copies.

Q 15. Is it legal for students to tape materials from CDs, records, tape recordings, and so on?

The situation with recorded materials is very similar to printed matter. It is a matter of degree (a non-substantial amount) and the use which is made of it (private study, research). It would certainly not be legal to tape an entire recorded course of study (or even a substantial amount of it).

Q 16. Can I make a tape or a video of a production from television and show it in my classroom?

Yes, of course you can, if you have the equipment and the inclination. But is it legal? No, it is certainly in violation of copyright law. As with printed material you must get permission.

Q 17. To what degree, if any, can a professor videotape a TV program and then show it, or selections from it, in class?

See the answer to question 16. Any amount of such practice is in violation of the copyright law.

Q 18. What sound recordings are in public domain here in Canada?

Copyright in sound recordings lasts for fifty years from the making of the original recording.

Q 19. Can commercial publications of unprotected material (e.g. Dover Editions, where the scores are identical to (i.e. copies of) original editions of more than 75 years ago) be photocopied legally?

Yes, unless the scores contained newly added materials.

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C. Duration of copyright

(See also Q. 4 & 9 for further information on duration of copyright)

Q 20. Is there a statute of limitations on publication? That is, for how long does a publisher "own" his edition? (and see question re Dover editions above).

The right to exclusively reproduce an edition lasts as long as the copyright.

Q 21. Can copyright be "renewed"? One occasionally sees this term in books. What does it actually mean?

A licence to publish a work may be renewed, provided that the term of the license does not exceed the terms of the copyright.

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D. Legal copies and alternatives

Q 22. Instructor. How can I get copies of a few pages from a large score legally into the hands of students?

In a few ways: (see also below under "alternatives to illegal photocopying" (Q-23)

  1. Place the score containing the music on library reserve at the beginning of the term. (Note that you must place the original score on reserve, NOT a photocopied copy.)

  2. Write the publisher and ask for permission - not an impractical suggestion if the music is to be used for a few terms. In general they will give permission, either with or without a small fee. Specify whether you want to place a photocopied copy on the library reserve or wish to make the copies and distribute them yourself for noncommercial class use.

Q 23. What are some alternatives to illegal photocopying?

  1. Buy the original and do the publisher a favour.
  2. Use an overhead projector for your materials.
  3. Get permission from the publisher of the material.
  4. Ask students to consult a reserve copy.
  5. Possibly the edition allows for legal copying. (EQ= folio music from Oxford University Press allows for the making of copies and them remitting a per copy fee to the publishers. This is an "honour" system, of course, and, if there is one, the arrangement will be stated explicitly on the music score.)
  6. Possibly the material is covered by the agreement with UNEQ or CANCOPY and you can then complete the necessary forms and make copies for your class of up to a chapter or 10% of the material, which ever is greater. NB: no printed music is covered by this agreement, just printed books, articles, etc.) Phone the McGill Bookstore for more information.
  7. If the material itself is out of copyright you may copy it by hand or with the aid of a computer software program (not a scanner!) and then photocopy it. See Q-19.

 

Q 24. Under what conditions may protected out-of-print material be copied?

Any substantial portion of protected material may be copied only with permission of the copyright holder. If the copyright holder does not, neither for love nor money, wish to give permission there is precious little that can be done about it! The copyright owner OWNS the material, and the bottom line is that you normally can not take something from someone else without their permission no matter how much you may want it. The notion that all art belongs to all of us is quite false. However, when it come to out-of-print books, a person can obtain from Ottawa a ministerial licence to re-print (minimum 1000 copies) even against the wishes of the copyright holder.

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E. Consequences and penalties

Q 25. Who actually suffers when something is copied illegally?

First and foremost the holder of the copyright, and anyone receiving royalties from the material. This could be the author of the work, and certainly the publisher. Also, booksellers, whose business drops each time a work is copied (whether legally or illegally, unless a copying fee is levied and paid), book distributors, advertisers, and so on down the line. Finally, YOU the consumer are hurt as mass copying has had one very direct effect- skyrocketing book and music prices. If you are a musician, or are working on it, help your colleagues, your profession AND YOURSELF by breaking the cycle, rather than the law.

Q 26. What penalty might result to the proprietors of a concert hall if it is discovered that 1. a performer played an unsanctioned manuscript in concert, and 2. a performer used photocopies of protected material in concert?

None, unless the proprietor was also the organizer-promoter of the concert, or had reasonable grounds to suspect that copyright infringement would occur.

Q 27. Who is liable in the case of a copyright suit?

Even the printer can be held liable for copyright infringement and it is no defense to say that he did not know what he was printing. This means that anyone involved in the infringement process from the University and the Schulich School of Music, to the professor, the Bookstore or Printing, are liable.

N.B. The QUESTIONS & ANSWERS document may be freely copied in full or in part, provided that the source of the document is given (Schulich School of Music, McGill University) and the above disclaimer is appended to any copied material.

This document, while reflecting as accurately as possible Canadian Copyright law, has been prepared for information purposes only. No reliance should be placed on it for the purposes of making legal decisions without further verification with the appropriate professionals.

This document has been prepared by:
Ad hoc School Committee an Copyright, Schulich School of Music, McGill University Abe Kestenberg, Cynthia Leive, Douglas McNabney, Joel Wapnick, Donald Patriquin (chair), Spring 1994