Klarinet Archive - Posting 000970.txt from 1999/11

From: "Jim O'Briant" <jobriant@-----.com>
Subj: RE: [kl] Asking for Help from the list
Date: Thu, 25 Nov 1999 01:20:45 -0500

Raymond Kong wrote:

> > What would have been the right thing to do?

Oliver Seeley replied, in part:

> It seems to me that this situation cries out as
> an acceptable application of making an
> "emergency fair-use copy ..." If ever there
> was a legitimate emergency I would consider
> not having parts for an upcoming concert,
> even a "for profit" concert, where legitimate
> payment for copyrighted parts has already
> been made to be one of them.

In principle, I agree with Oliver 100%.

There are two important details that we need to remember, however.

First, Raymond and his orchestra are not in the USA. His e-mail address
ends in < .my > and I think that's Malaysia. So whatever the US
copyright law says about "Fair Use" is irrelevant -- Malaysian copyright
law is what applies here. If Malaysian law in fact provides the same sort
of situational exemption as US law (as it should if it's to make any sense)
then the emergency copies were indeed legal.

Second -- and this is a point on which many people are greatly mistaken --
current US copyright law makes no distinction whatsoever between
"non-profit" and "for profit" performance. That distinction did exist in
the 1909 US copyright law. It was removed in the 1978 US copyright law.
The fact that a performance is free, or that a performance is educational
in nature, or that the performing group is a non-profit group, is totally
irrelevant today when it comes to copyright violation. There are thousands
of school music teachers wearing out their photocopy machines making copies
they think are legal, because they are for "non-profit educational
purposes," when actually they are routinely breaking the law.

Jim O'Briant
Bayside Music Press
Gilroy, CA

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