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David Appelman Advanced Instrumental Methods Topic 4 Paper

Federal Funding & Copyright Law in Music Education


History of Federal Funding
Throughout the centuries, governments of great nations, states, and cities have participated in promoting the arts for the enrichment and edification of the lives of their citizens. These governing bodies believed, as did John F. Kennedy, that societies are ultimately judged by the quality of their cultural environment, and that nations are remembered, not for their victories or defeats in wars or politics, but for their contributions to the human spirit. (Barresi, 1981) [pg. 245]

Barresi identifies three distinct eras that illustrate the role of the federal government in support of the arts and music education that existed from 1790 to the establishment of the National Endowment for the Arts in the 1960s: the eras of practical necessity; economic necessity; and cultural necessity. By placing instances of past federal assistance into periods identified by the common thread of necessity, a better understanding may be gained of factors influencing present-day funding procedures. The era of practical necessity came about during the nations formative years, providing the setting for early federal support toward music and the arts. Many of our early American statesmen, such as George Washington, were aware that the arts were to play an important role in the development of the nation. For example, Washington recommended that Pierre LEnfant, designer of the city of Washington, D.C., include an arts center in the design of the new capital city. A few other events motivated by practical necessity include:
1790 Establishment of the United States Marine Band as the first musical ensemble to receive permanent support for performances at ceremonial occasions. 1800 Library of Congress established. Collections included music and art. 1846 The Smithsonian Institution established to serve as a repository for the national art and scientific collections. 1891 Congress established a National Conservatory of Music under the directorship of Antonin Dvorak.(Barresi, 1981) [pg. 246-247]

David Appelman Advanced Instrumental Methods Topic 4 Paper

Government support of the arts grew to a massive scale during the Great Depression in the 1930s. Due to the extended period of economic paralysis, the number of unemployed artists and arts educators increased to a significant proportion of 70%. Ironically, the overall

unemployment rate stimulated an era of economic necessity for music performers and educators. Because of the high unemployment rate, many of the nations citizens had a significant amount of leisure time. Recognizing a need for recreational activities to keep spirits positive, the government employed artists and educators by establishing programs in performance, art appreciation, and private instruction. A few of the programs generated by economic necessity are listed below:
1933 Establishment of the Civil Works Administration (CWA) to replace the public grief with work relief. This program sponsored festivals of music and folk dance, symphony orchestras, concert bands, choruses, and chamber music ensembles. 1934 Replacement of CWA with the Federal Emergency Relief Administration (FERA). Under this program almost every state instituted a variety of music projects relating to performance and education. 1935 Federal Music Project of the Works Project Administration (WPA) replaced FERA music program. At its peak, this program employed 16,000 people. An estimated 3 million people attended 6,000 performances by WPA musicians, and 132,000 people in 26 states were taught music by WPA teachers.(Barresi, 1981) [pg. 247]

Beginning in the 1960s, an era of cultural necessity arose. Government interventions during this period were characterized as cultural because the government responded to what it felt were the aesthetic needs of the people and the requirements of artists and arts organizations to meet these needs. A few events that led to the establishment of the National Foundation for the Arts and Humanities include:
1964 In September, President Lyndon B. Johnson signed the law establishing the National Council on the Arts, a 24-member body charged to recommend ways to maintain and increase the nations cultural resources and to encourage and develop a greater appreciation and enjoyment of the arts by its citizens.

David Appelman Advanced Instrumental Methods Topic 4 Paper 1965 President Johnson, in his State of the Union message, recommended the establishment of a National Foundation for the Arts and Humanities (NFAH) a single foundation with two separate, but equal, endowments. 1965 On September 29, the president signed Public Law 89 209 establishing NFAH as an independent agency in the executive branch of the federal government. The arts funding wing of this foundation, the National Endowment for the Arts (NEA), played a major role in arts activities through the mid-60s and 70s.(Barresi, 1981) [pg. 249]

Fannie Taylor, a former director of music programs and director of program information for the NEA expressed that its major goals are to make the arts more widely available to millions of Americans, preserve our cultural heritage for present and future generations, strengthen cultural organizations, and to encourage the creative development of the nations finest talent (Barresi, 1981) [pg. 249] Music Education has faced modest expansion in some parts of the nation and stability in most other areas. This stability has been created by many things, including activities of advocate organizations such as the Music Educators National Conference (MENC, currently The National Association for Music Education; NAfME). One of NAfMEs primary goals is to increase public awareness of the benefits of music education, the overall strength of the economy, and willingness of decision-makers to support a full curriculum. (MENC, 2002)

Elementary & Secondary Education Act


In 2002, American education underwent a significant change in the administrative structure that controls federal expenditures for education with the institution of the Elementary and Secondary Education Act. The law, more commonly known as the No Child Left Behind Act (NCLB) is constructed on the premise that states and localities are best qualified to make decisions regarding how funds for education, including Federal funds, should be spent. This principal reform requires states to prepare and present to the US Secretary of Education a plan
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David Appelman Advanced Instrumental Methods Topic 4 Paper

for their spending in each area. The states then forward the bulk of the federal money to the Local Education Agencies (LEAs), who are also required to spend according to the initial plan. The requirements for the plans are flexible, but must include four aspects that are of importance to music educators. Advocates for music education need to understand how each aspect is likely to be put into practice. (MENC, 2002) [pg. 2] These four aspects must: 1. 2. 3. 4. Include accountability for student achievement. Be designed to increase student achievement in core academic areas. Be designed to make use of scientifically based research. Help student achievement as measured by challenging State standards.

Accountability for Student Achievement The first aspect emphasizes the importance of accountability. For music educators who have led the field in authentic evaluation methods, this should not be a problem. However, the fact that testing mandates of the law are specifically in reading, math, and science could be a problem. This forces states to determine tests and curricula that leave localities vulnerable to being incomplete and ineffective. Unfortunately in many cases, this focus on reading, math, and science causes localities to create narrow curricula that effectively exclude music. As a result, these testing mandates of the law have led music advocates to strategize creatively. One

suggested strategy is to make sure administrators and decision-makers understand that music, in addition to its inherent value for students, is associated with higher achievement on important measures such as the SAT math and verbal scores. Achievement in Core Academic Areas For music advocates, this aspect is considered one of the most advantageous parts of the law. The law says that the term Core Academic Areas includes English, reading or language arts, math, science, foreign languages, civics and government, economics, arts, history, and
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David Appelman Advanced Instrumental Methods Topic 4 Paper

geography. An important advocacy strategy regarding this aspect is to remind administrators and decision-makers that the clear will of Congress was to include music, as one of the arts, in the development and maintenance of programs meant to help our schools and students It is of particular importance in the administration of Title I funding, which is geared toward improving the academic achievement of the disadvantaged, and for Title II funding, which is for preparing, training, and recruiting high quality teachers and principals. (MENC, 2002) [pg. 2] Scientifically Based Research The NCLB Act stresses that decisions about the allocation of federal resources for education should be based on scientifically based research. Its intent is to leverage the

decision-making process to improve the quality of curriculum in our schools. Music advocates need to be aware of the research that meets the specifications of the law, and to use it to justify the educational practices used in music education. Additionally, advocates should ask NAfME for the data collected by the National Assessment of Educational Progress (NAEP) in music, including regular inquiry for data on music education by the Department of Education. Challenging State Standards High state standards are also advantageous for music education. NAfME has established National Standards, which have had almost 18 years of implementation at the state and local levels. It is good for advocates to find out what their state and local education agencies are formulating that will affect music education, and to remind the decision-makers that the state supported the judgment with the development of Standards.

David Appelman Advanced Instrumental Methods Topic 4 Paper

Copyright Law
As teachers determine and use instructional materials for their students, it is important that they fully understand the legal implications for using the materials. The principle of copyright protection in the United States originates with the Constitution. As time progressed, Congress codified these protections through various versions of the Copyright Act. In the 1976 act, Congress acknowledged the field of education as a unique case, and it established exceptions to the law regarding teachers pedagogical needs and classroom materials. These exceptions took form as a set of voluntary guidelines, created by those representing the copyright holders and educators, including NAfME (MENC at the time). (Schlager, 2008) Before teachers use any printed or prerecorded material in their classrooms or for any type of school performance, they must determine whether the use falls under either the Copyright Acts specific exemptions or the voluntary guidelines. There are six different types of copyright uses in the classroom that teachers need to keep in mind: reproducing, recording, preparing derivative works, distribution, performance, and display. Each of these uses address different points of law and different methods for licensing copyrighted material. (Schlager, 2008) The following is a brief overview of these six uses: Reproducing Within the Copyright Acts fair use provision, there are four factors for determining whether usage is allowed without a license; 1) purpose and character of the use, 2) nature of the work, 3) amount and substantiality of the used portion, and 4) effect on the potential market for or value of the work. These factors are vague, but the voluntary guidelines exist to help interpret what a teacher is able to do without seeking permission from the copyright owner.

David Appelman Advanced Instrumental Methods Topic 4 Paper

The exceptions include making one copy per student of up to 10% of a piece of music for class study, as long as the 10% does not constitute a single performable unit, such as a small movement of a larger work. Also, if a teacher is giving out 30 copies of a complete piece, regardless of whether it is only 10% of the original book, this does not constitute fair use, and the teacher would need to give the students less than the complete piece. Recording According to the voluntary guidelines, teachers can make a single recording of a student performance of copyrighted material for educational or archival purposes. In addition, a single copy can be made if it is for an aural exercise or test. Other than these exceptions, a

mechanical license is required; however, a compulsory license can be granted if the piece already has been legally distributed. In this case, the copyright owner is required to license it to anyone who wants to record it; otherwise, a licensee must pay a fee to the copyright owner. In 2008, the statutory rate was 9.1 cents for songs five minutes or less, and 1.75 cents per minute or fraction thereof over five minutes. If someone plans to make 500 2,500 copies, they need to obtain a mechanical license through the Harry Fox Agency; if someone plans to make 500 or less copies, they need to contact the publisher directly. Derivative Works A teacher is able to rearrange, edit, or simplify a copyrighted work for educational purposes, as long as the fundamental character of the composition is not changed, and that lyrics are not added or altered. If a teacher plans to significantly alter a composition, he or she must contact the publisher and obtain permission. If, however, the composition falls under the

David Appelman Advanced Instrumental Methods Topic 4 Paper

compulsory license, a teacher is free to create a new arrangement for the purpose of recording and distributing it. Distribution Similar to recording, the guidelines allow for classroom distribution of fragments of copyrighted works or a single copy of a recording for educational purposes. Additionally, a teacher can distribute new recordings made under the compulsory license. Performance Most performances of copyrighted songs require a license from ASCAP, BMI, or SESAC, depending on which performing rights organization the writer has joined. In cases where live song performances are used to demonstrate technique during a music class, the performance would be classified as a face-to-face teaching exemption. This type of exemption falls under Section 110 of the Copyright Act, which makes it permissible for teachers to illustrate instructional material in the form of live or prerecorded music. Regarding performances of longer dramatico-musical works (e.g. opera, ballet, or musical) it is typically necessary to license the full work, either from the publisher or one of several licensing agencies, such as Tams-Witmark Music Library or Rodgers & Hammerstein Library. Display The face-to-face teaching exemption under Section 110 also allows for teachers to display in the classroom (e.g. PowerPoint, overhead projector) any materials they have legally acquired. Another copyright aspect related to recording is posting performances on the internet. A new media sharing website, SchoolTube, Inc., was established this year, and is endorsed by
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David Appelman Advanced Instrumental Methods Topic 4 Paper

major educational associations, including the National Association of Elementary School Principals (NAESP) and the National Association of Secondary School Principals (NASSP). (Sparkler, 2010) SchoolTube, Inc. is approved in schools across the US and around the world due to a safe moderation process that ensures all user-generated content is appropriate for the K12 environment. (Wikipedia, 2012) Because SchoolTube, Inc. uses streaming technology, the videos a teacher will be posting are considered public performances rather than recordings. This will require two rights; a Reproduction Right and a Public Performance Right. Uploading a video of a performance to the internet is considered a reproduction and requires a license (sometimes called a synchronization right), which can be obtained from the music publisher. (Sparkler, 2010) Regarding Public Performance Rights, it is important for the teacher to determine whether a license is required by first determining the type of musical work that he or she is planning to post. All pieces of music fall under 4 categories, each with their own requirements of legal action on the teachers part. (Sparkler, 2010) Public Domain Works If the piece of music was published in 1922 or earlier, it is considered public domain, and does not require a performance license. However, a teacher should make sure that the

arrangement of the song is not copyrighted. A public domain database can be accessed through Public Domain Information Project at www.pdinfo.com to ensure that a piece of music is not copyrighted any longer.

David Appelman Advanced Instrumental Methods Topic 4 Paper

Copyrighted Works If the piece of music was published after 1922, a teacher will need a public performance license from the licensing organization the composer of the music has joined, such as ASCAP, BMI, or SESAC. SchoolTube, Inc. has an ASCAP license, but if a teacher wants to post a performance on their school website or another site, they need to make sure that the site is licensed. If the site is not licensed, one will need to be obtained from one of the aforementioned licensing organizations. Additionally, music published before January 1, 1978 has a copyright term that lasts 95 years from the publication date. If the music was published after 1978, the copyright term lasts the duration of the composers life plus 70 years. Dramatico-Musical Works If the piece of music is a longer work (e.g. opera, ballet, or musical) a teacher should license the full work from the publisher or one of several licensing agencies, such as TamsWitmark Music Library or Rodgers & Hammerstein Library. Some publishers of shorter

musicals for elementary or middle school grades may offer a package, which includes performance rights with the music. Works Performed at NAfME Events If a teachers music performance is part of a NAfME event or state conference, a license is not needed. These performances supported by NAfME or state units of NAfME are covered under a blanket license, which is paid each year by NAfME to ASCAP and BMI for compositions licensed by these agencies.

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David Appelman Advanced Instrumental Methods Topic 4 Paper

References:
Barresi, A. L. (1981). The Role of the Federal Government in Support of the Arts and Music Education. Journal of Research in Music Education, 29(4), pp. 245-256. MENC. (2002). Music Education in the Law...and what to do about it: MENC - The National Association for Music Education. Schlager, K. (2008). Copyright Law: What Music Teachers Need to Know. Teaching Music Magazine(April). Sparkler, A. (2010). Posting Your Musical Performance on SchoolTube: A How-To Copyright Guide. Teaching Music Magazine(August). Wikipedia. (2012). SchoolTube, from http://en.wikipedia.org/wiki/Schooltube

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