August 1999

Information technology has given professional meetings and seminars a new look. Speakers now routinely use laptop computers to project visual aids and incorporate into their presentations large portions of material located on the Internet or digitized by optical scanners. Accompanying materials may be distributed in paper, in microform, on CD-ROM or placed on the web. As the use of these materials in presentations becomes more widespread, the speakers and the sponsoring associations must consider the copyright implications of such acts.

There are two primary uses made of copyrighted works to support and enhance professional development programs: (1) reproduction of copyrighted articles, chapters, graphs and other materials distributed as handouts or posted on the web and (2) display and performance of copyrighted works in the course of a meeting or seminar. Each of these is grounded in section 106 of the Copyright Act.

The reproduction of copyrighted materials as handouts and supporting materials for conferences is covered by section 106, subsection (1) and (3). The rights of reproduction and distribution are among the exclusive rights of the copyright holder. There are limitations on these exclusive rights, but none that absolutely exempts the reproduction of materials for conferences and seminars. There are guidelines for reproducing multiple copies of materials in nonprofit educational institutions, but these do not apply. Even though the conference may be sponsored by a nonprofit agency or association, the multiple copying guidelines are available only to schools. The only exemption that could offer some help is fair use. Fair use excuses uses of copyrighted works if certain factors exist. These factors are: (1) purpose and character of the use, (2) nature of the copyrighted work, (3) amount and substantiality used and (4) market effect.

While the purpose of the use is educational, courts have made it clear that educational purpose is not enough. Even uses by a nonprofit educational institutions may not qualify as fair use. On the other hand, nonprofit uses are favored over commercial ones. The works reproduced by associations for seminars and meetings are likely to be scholarly articles, book chapters, scientific graphs, charts and the like. While fair use certainly applies to these works, the third factor may be a problem. As the Texaco opinion indicated, reproduction of a scientific article means that 100% of a work is copied, and not a small portion. The same is true for a chart or graph. For market effect, since multiple copies are involved, a court likely would consider the existence of licensing mechanisms such as the Copyright Clearance Center, the availability of publishers= reprints, etc., in judging this factor.

On balance, a court likely would find that permission should be sought and royalties paid for the reproduction of multiple copies to distribute at professional seminars and meetings.

The second issue, performance and display at professional meetings and training sessions, are covered by section 106, subsections (4) and (5) which provide that copyright owners generally may control the public performance and public display of their works. A seminar speaker using a protected work without permission in a setting that qualifies as a public performance or public display would infringe copyright unless the use is excused by a defense, such as fair use.

The initial step in analyzing these situations is to determine whether a particular performance or display is "public," under the Copyright Act since only public performances and displays are subject to copyright protection. So, the threshold question is whether a particular performance or display qualifies as "public" under the statute.

A performance or display is "public" if it satisfies one of three criteria. First, performances and displays occurring in places open to the public qualify, regardless of whether an admission fee is charged or whether the sponsoring association is a nonprofit entity. Second, a performance or display qualifies as "public" if it occurs at any place where a substantial number of persons beyond a normal circle of family and social acquaintances is gathered. Third, any performance or display meets the definition of public if it is transmitted to another location.

Works used in many, if not most, seminar and professional programs will qualify as public performances or displays under these criteria. Even if a performance of a work occurs in a place not open to the public, such as a corporate conference room, it will be "public" if enough people are present. No bright line rule exists concerning the number of people present, although some courts and attorneys general have suggested a 20-person threshold for such performances.

Some performances will be public under the statute by virtue of being transmitted to other locations. A performance of a work which is transmitted to several branch offices of a business, for example, falls within the statutory definition regardless of the number of people viewing or where they are located.

A public performance not authorized by the copyright owner is infringement unless a defense allows it. The defense that might apply to conferences and seminars is fair use. Among the fair use factors, the amount and substantiality of the portion used in relation to the whole work, is probably the most relevant for performances and displays. The more quantitatively and the more qualitatively that one takes, the less likely that the use qualifies as a fair use. Further, if the seminar speaker uses the portion of the work in several presentations, the less likely the use will qualify. Displaying a cartoon or other graphic involves using an entire work, and may fail the quantitative portion of this test. Thus, in many instances the performance or display of a protected work in a program will infringe the copyright. Further, the market effect factor may be problematic because public performances often are licensed.

Asking permission to perform or display works is one simple way to avoid these problems. Many copyright owners give permission for uses in nonprofit seminars for little or no cost. It is often better to ask permission before using a work. Courts have held that using a work within the bounds of fair use even if the copyright owner has refused permission does not indicate bad faith. To the contrary, asking for permission