Postings within a password protected environment
- February 25, 2008 @ 8:30amlwetzel says:I have a teacher in a K-12 public school that would like to record her choir's rehearsals using her iPod and MicroMemo. She'd like to have this recording available to her students on the web to use for rehearsal purposes at home. Since the music is copyrighted, we know that she can't post them on her blog that is open to anyone on the web. Could she post it to a Blackboard site that is password protected so that only her students could access it?
- February 25, 2008 @ 2:22pmMollyKleinman says:I'm inclined to say yes, since in similar situations at my university, I tell faculty "Yes, you can post pdf's of copyrighted articles to a class website like Blackboard, as long as the site is password protected and accessible only to current students."
One potentially important difference is that in the university setting, we're usually talking about factual journal articles, and your situation involves music. Works that are highly creative - like music - tend to have "thicker" copyright protection, which might counter the non-profit, educational nature of the use.
A quick fair use analysis leaves things pretty murky:
Purpose of the use: Non-profit, educational. Good.
Nature of the work: Highly creative, music. Bad
Amount used: Presumably the teacher plans to record whole songs. Bad. If she just plans to use excerpts, that might be better.
Potential impact on the market for the original: Unclear. Certainly the rehearsal recordings would not compete with the original recordings of these songs, nor would they compete with published sheet music. However, if the publisher or copyright holder of the music sells practice recordings that are meant to supplement or support rehearsals (which is not unheard of), then the recordings the teacher plans to make would probably have a small impact on the market for those.
Given all of that, I would still argue that the educational nature of the use, the very limited nature of the distribution, and the fact that the recordings are of student rehearsals (as opposed to popular renditions of the songs) all weigh heavily in favor of making the recordings and posting them to Blackboard. Even with the ambiguous fair use analysis, it seems like a pretty low-risk situation.
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