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Background Music in eLearning & Copyright

by Kevin Siegel, COTP

Over the past few months, I’ve received more and more calls and emails about the pros and cons of adding background music to eLearning projects (specifically projects created using Adobe Captivate).
First and foremost, it’s a simple process to add background in Captivate via Audio > Import to > Background. In the image below, I’ve imported a music file called Acoustic Mellow.mp3. The file comes with Captivate and can be used in your Captivate projects royalty-free.
While the process of adding background music to projects is simple, there are two bigger questions that need to be asked. First, is it a best eLearning practice to include background audio? Second, does it break copyright law to add the music without permission from the copyright holder?
Is It a Best Practice to Add Background Music to eLearning?
Ask 20 eLearning developers if it’s cool to add background music to eLearning and you can expect 20 wildly different opinions. From my perspective, background music can be as polarizing as politics or religion. Case in point: everyone knows that Led Zeppelin rules and the rest are fools. Forget that… let’s go with Justin Bieber! How about a bit of jazz music to get you in the mood to learn… or to put you to sleep? Country? Punk? Soft Rock? The bottom line is that the background music you choose is going to make you happy, but bum out at least 50% of your audience. My advice is not to do it.
Copyright Law as it Relates to Using Music in eLearning
So you ignored my advice above and you’re going to do it. Fine! But is it legal? In the two examples above, the background music was included with the eLearning development tool so you’re allowed to use it. But what about Bieber’s greatest hits? Can you use his music in your projects? What about that cool melody you found via a Google search?
I’m not a copyright lawyer (and I don’t play one on TV), however, I have had more than one copyright lawyer in my Captivate, Storyline, and Camtasia classes over the years who have agreed that it is “perfectly fine to use copyrighted music in your projects, provided the lesson you create is meant for educational purposes and that you do not use more than 10% of the copyrighted works or 30 seconds, whichever comes first.”
Cool, go forth and add that music to your projects!!!
Not so fast! Did I mention that I’m not a lawyer? And did I also mention that more than one lawyer/student in my classes has said that the statement above is correct? And that I’ve also had students/lawyers in class who have said that it is never okay to use copyrighted works without permission?
So there you have it… it’s okay to use copyrighted music in your lessons; it’s not okay to use copyrighted music in your lessons.
So here’s another personal recommendation that you’re probably going to ignore (you ignored me when it came to The Biebs, didn’t you?). My personal opinion when it comes to adding copyrighted music to eLearning is don’t do it, unless you have written permission from the copyright holder to do so.
Having said that, I thought you might like to learn a bit more about copyright from two sources.
Source 1: Copyright Law According to the US Copyright Office
The US Copyright Office says the following about copyright: “Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works.”
That seems straightforward enough, until you get to this blurb, also provided by the US Copyright Office: “It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope. Sections 107 through 121 of the 1976 Copyright Act establish limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability. One major limitation is the doctrine of “fair use,” which is given a statutory basis in section 107 of the 1976 Copyright Act.”
If you review section 107 via the link above, this passage jumps out (and is the most important if you are creating eLearning for training purposes: “the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”
Hmmm, when I see the word “teaching” above, it leads me to believe it’s okay to use music in my eLearning projects because I’m using my lessons to teach a concept. Right? Or does the word “teaching” refer to teaching the music in question (for music teachers only)?
At this point, if I’ve learned anything about the copyright laws, I’ve learned that attempting to interpret the language can be an exercise in futility! While that explains why lawyers make the big bucks, it doesn’t explain why lawyers often provide different interpretations of the law. Shouldn’t this stuff be black and white?
Perhaps the next source will help set things straight.
Source 2: Music Copyright Myths
Note: The following article was originally published at www.premiumbeat.com, a leading Royalty Free Music Library.
Ever downloaded music from the Internet? Perhaps you wanted to use it in the classroom, or needed it for your website, or to add to a flash movie, or maybe to jazz up a multimedia project… Whatever the end use, more and more of us are frequently turning to the Internet as our one-stop resource for digital music because we know that it is a fast and easy way to get just what we are looking for! Unfortunately, what many of us don’t know is that it may not be legal to do so. Downloading music files for free from the Internet and using them like they belonged to you means that not only are you infringing upon the copyright, but you are also risking being fined and even being legally prosecuted.
The law does not recognize if you are unaware of copyright laws. So, don’t put yourself in an illegal situation when it is so easy and affordable to use Royalty Free Music from music production libraries such as www.premiumbeat.com. And don’t base your online actions on hearsay.
This article attempts to bust some common myths that abound in the virtual world and put you on the right side of the law.
Myth 1: It is legal to use any music for 7 seconds
Fact: No. Unlawful use of even a short excerpt from a song is enough to land you in a copyright infringement case. Don’t believe anyone who tells you otherwise, unless he is a copyright attorney! Remember, there is nothing like free to use music… not for 30 seconds, not for 7 seconds, not even for the first eight bars! You need a license to use music without landing into trouble.
Myth 2: I bought a music CD, I can use the music on my website since I paid for it.
Fact: Wrong. You bought the CD… not the music! Buying a legitimate CD gives you the right to play the music privately. You definitely need permission from the composer of the music as well as the sound recording company to use the music on the CD as background music for your website.
Myth 3: The composer is dead- his music is no longer under copyright.
Fact: Untrue. The copyright for a music composition lasts for approximately 70 years from the death of the composer. It does not automatically expire with its creator. And even if the composer has been dead for a long time (like Mozart for example) you still don’t have the right to use someone’s interpretation of their music without a license.
Myth 4: It’s for a non-profit organization, so I can use any music I want for free.
Fact: False. Your project (website, presentation, video… anything) may be non-profit, but when it becomes available to other people, you are allowing them to hear music they didn’t purchase. That is a breach of the copyright law, no matter if you are making money on the project or not.
Myth 5: I can use this music for free because I found it on the Internet.
Fact: Absolutely not. All music found on the Internet is under copyright. If you reproduce, perform, or distribute musical compositions and sound recordings without the requisite licensing, you are violating copyright law.
Myth 6: I can use music because the website did not carry a copyright notice.
Fact: Beginning March 1, 1989, it was no longer mandatory to display the copyright notice to protect one’s intellectual property, in this case, music.
And if you are still not convinced, consider this: Would you pick up produce from a farm and walk away without leaving money for what you took? Most certainly not! You wouldn’t deprive a hard working farmer from his rightful income. Likewise, if you violate copyright law, you deprive a composer of the royalties derived from the purchase of their work. Think about it!
Conclusion: I think the US Copyright Office sums it up best when it comes to using copyrighted music in your eLearning: “For further information about the limitations of any of these rights, consult the copyright law or write to the Copyright Office.”
That’s great advice (the write to the Copyright Office part). If you’d like to contact the Copyright Office, their phone number is 202.707.3000.
Here is the address:

U.S. Copyright Office
101 Independence Ave. S.E.
Washington, D.C. 20559-6000

Finally, here is their website: http://www.copyright.gov/.
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Kevin Siegel, CTT, COTP, is the founder and president of IconLogic. Following a career in Public Affairs with the U.S. Coast Guard and in private industry, Kevin has spent decades as a technical communicator, classroom and online trainer, public speaker, and has written hundreds of computer training books for adult learners. He has been recognized by Adobe as one of the top trainers world-wide.

One Response

  1. If you never want to end up in legal hot water, make your own music, pictures or video and get the permission of others who appear in that media. Everyone has a smartphone with image and video capabilities, and you can always make your own composition with Garageband.

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