Copyright for Podcasting and iTunes U

Veronica Diaz, PhDAlisa Cooper, EdD

Resources

http://drcoop.pbwiki.com/PodcastingLegalIssues

Copyright law is relevant to podcasts because it applies to creative and expressive works and includes performances, scripts, interviews,

musical works and sound recordings

Under current US copyright law, copyright attaches automatically to creative, expressive works once they have been “fixed,” i.e. written down or recorded

Interviews Make sure the interviewee agrees to the

interview, your adaptation of their responses (assuming you intend to adapt them), to the inclusion of their responses in your podcast, and the circulation of your podcast on the terms you choose.

Make sure all necessary rights and permissions are secured for the material included in your podcasts

Copyright Tutorial: Example 1 Hank is a motivational speaker. When he makes his

presentations, Hank speaks impromptu, without notes or any other advance preparation. He recently accepted an invitation by Acme Community College to speak at two functions there. At one of his appearances, Hank's speech is preserved in an audio recording. At the other appearance, his speech is not recorded in any way. Are either of Hank's speeches a copyrightable work?

Yes: The sound recording of Hank's speech is an original work of authorship fixed in a tangible medium of expression . . . namely, the audio preservation. Since the other appearance was not recorded in any way, and therefore not fixed in any sort of tangible medium of expression, it is not a copyrightable work.

Source: http://www.maricopa.edu/legal/ip/copyright_tutorial/copyright_tutorial.htm

Copyright Tutorial: Example 2 Mickey, an enterprising student at Acme Community

College, realizes at the last minute that he has neglected to complete an assignment that is due tomorrow in his jazz history class: to listen to, and describe the influence of, several classic recordings by Duke Ellington. The class instructor had placed the recordings on reserve in the Acme media center, where the students could easily listen to them at their leisure. Instead of listening to the recordings at Acme, however, Mickey chooses instead to download original versions of "Sophisticated Lady," "Mood Indigo," and "Take the 'A' Train" from an illegal music file sharing site off the Internet. He does this at a terminal late at night in the Acme computer commons, thinking that he'll never get caught and--since Duke Ellington has been dead for nearly thirty years--there's nobody left to complain. Is Mickey correct?


Example 2 continued

Mickey's downloading of the music was in violation of copyright law.

Mickey was not safe in assuming that a work is not protected by copyright simply because the composer or performer of a musical work is no longer living. Moreover, not only did his actions violate copyright law, they also violated Acme's computing resource standards which prohibit the use of software or "any other tangible form of expression that would violate or infringe any copyright or similar legally-recognized protection of intellectual property rights." Violation of such a policy makes him subject to discipline under Acme's student code of conduct.


Copyright Tutorial: Example 3 In addition to serving as a student services officer

at Acme Community College, Chuck also teaches a course every semester at Acme as an adjunct instructor. On each occasion he teaches his class, Chuck shows his personal copy (which he purchased from a Disney store) of Disney's "The Little Mermaid" to his. He loves the film so much that he also runs it whenever he can on the video player in the Acme student union. At no time has Chuck sought to obtain prior permission to show the film from Disney, but he feels confident that he is doing nothing in violation of copyright law. Is Chuck correct?


Example 3 continued

Copyright law allows Chuck to show a lawfully-made copy of a commercial film in his classes without obtaining the prior permission of the copyright holder. This exception only applies, however, to face-to-face instruction. It does not apply to such use as his showing the film in the student union. For that use, Chuck should obtain the prior permission of the copyright holder.


A “fair use” is copying any protected material (texts, sounds, images, etc.) for a limited and “transformative” purpose, like criticizing, commenting, parodying, news reporting, teaching the copyrighted work.

4 factors considered in fair use cases: 1. purpose and character of your use;2. nature of the copyrighted work;3. amount and substantiality of the portion taken;

and4. effect of the use upon the potential market.

Fair use overview: http://fairuse.stanford.edu/Copyright_a

nd_Fair_Use_Overview/chapter9/9-b.html

Fair Use Podcasting: Example 1 A book group organized by a high school

teacher podcasts its meeting discussing J.D. Salinger's Catcher In The Rye. The members discuss the book, read short portions of it aloud, and criticize and comment on the author's style, the storylines, and the like. The podcast is posted on the book group's blog site, which is hosted by the high school. The site includes no advertising and generates no revenue.

Conclusion: This would likely be a fair use.

Fair Use Podcasting: Example 2 A podcaster uses the copyrighted

music of pianist George Winston for the intros and outros of her podcast that is about yoga and meditation. The podcast has nothing to do with commenting or critiquing the music played.

Conclusion: This is likely not a fair use.

Fair Use Podcasting: Example 3 A 10-minute podcast includes a group of music fans discussing a

recent copyrighted article in Rolling Stone magazine about a new band. One fan reads 4 paragraphs of the 6-paragraph article and comments on its analysis of the band. Another fan plays a 1-minute segment of the band's copyrighted song, which is 2 minutes in length. The fan then discusses the music as it compares to other music in the genre. The fans post the podcast on a fan website where advertising is sold, and the fans receive revenue for their podcast.

Conclusion: This commentary/criticism by the fans in response to the article and song suggests a “fair use”, but the commercial/profit aspect of the site where the podcast is being distributed raises concern, as does the amount of the article and song taken in comparison to their overall length. Any negative effect on Rolling Stone magazine's market or the band's market for its music could cut against the fair use argument, though the podcasters might argue that the podcast promotes the Rolling Stone magazine article and band's song, and that it is not a replacement for either (of course, this would likely be costly and difficult to prove in a trial setting). Given the flexible application of the fair use doctrine, and that the burden lies on the podcaster to prove fair use, podcasters in this situation could be found to infringe.

Creative Commons

Get Creative

Reticulum Rex

http://support.creativecommons.org/videos#rr

Must be the creator of all of the materials included in your podcast or

Must have the express permission of the creator or copyright owner of materials included in your podcast to license their materials under a Creative Commons license.

One method of marking your podcast before distribution is to use the “All Rights Reserved” model. Under this model, you would “reserve” all your copyright-

related rights in your podcast by marking: © [owner] [year]

Creative Commons License Options: http://creativecommons.org/about/licenses/meet-the-licenses

Find Creative Commons work: http://search.creativecommons.org/ Customized Yahoo! and Google searches available in the “Advanced Search”

Yahoo! : (http://search.yahoo.com/search/options) clearly illustrates how you can limit your search results to Creative Commons-licensed works. Google : (http://www.google.com/advanced_search) by limiting your search according to “Usage Rights”, this will restrict your searching to find CC-licensed materials only.

http://ccmixter.org/ http://www.audiofeeds.org/ http://music.podshow.com/ (the podsafe music network) http://www.podsafeaudio.com/ http://www.ipodarmy.com/2005/06/how-to-find-podsafe-musi

c/ (how-to article)

http://www.magnatune.com http://promonet.iodalliance.com (a service from IODA

(Independent Online Distribution Alliance) that offers podcasters, and others access to thousands of pre-cleared tracks from independent record labels)

http://www.pumpaudio.com/index.html (proper licensing of independent music for use in advertising, television, film and the web)

http://www.garageband.com/htdb/feed/partners.html (music supplier with large catalog of CC music)

http://www.gcast.com (free and simple service that provides entire GarageBand catalog that is podcast safe)

Browse through Creative Commons content and look for one or two items that are free

What did you find?

You DO NOT need to secure the separate permission of the provider of a work in 5 main instances: 1. When the parts you record as part of your

podcast are not protected by copyright; 2. When the text was protected by copyright

but is in the public domain; 3. When you are using US Government

works; 4. When you are making a “fair use” of the

work;5. When you wish to make more than a “fair

use” of the work and the work is under a Creative Commons license that authorizes your intended use

This presentation was built with resources found at Podcasting Legal Guide PodCon Collegiate Broadcasters Podcasting

Legal Issues Legal issues in podcasting the

traditional classroom https://drcoop.pbwiki.com/

PodcastingLegalIssues

Use podsafe content whenever possible

Review the podcasting legal guide

Post your podcast behind a password-protected site

Consult an expert

iTunes U Stanford University Miami Dade CC MIT University of

Arizona ASU

Take a moment to browse through the iTunes U institutions via iTunes U at iTunes

Look for your disciplines or just browse

iTunes U sites at all 10 colleges500 GB space for each iTunes U college administrators

and/or contacts SMCC CGCC Mesa

Contact Us:

Veronica Diaz, PhDMaricopa Community Colleges, [email protected]

Alisa Cooper, EdDMaricopa Community Colleges, South Mountain Community College [email protected]

Copyright for Podcasting and iTunes U

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