Creative Education
2012. Vol.3, No.2, 205-207
Published Online April 2012 in SciRes (
Copyright © 2012 SciRe s . 205
Balance of Power between Copyright Owners and
Music Teachers
Givewell Munyarad z i1*, Richard Makoni2
1Great Zimbabwe University, Masvingo, Zimbabwe
2Africa University, Mutare, Zimbabwe
Email: *,
Received November 15th, 2011; revised December 18th, 2011; accepted December 31st, 2011
This contextual paper investigated literature on copyright owners and music educators. The purpose of the
paper was to explore the balance of power in the music industry and the education system. In this study
the researchers utilized internet resources, available literature in the library and information from informal
interview with both music educators and copyright owners. Major findings of the study are as follows:
There is a shake balance of power between copyright owners and music educators as music educators
seem to be taking advantage of the existing cooperate laws. The TEACH Act does not affect non-mem-
bers; therefore, the balance of power does not apply to all countries especially developing nations. The
raise of modern technology including the internet affected the relationship in intellectual of property. In
the work of these findings the researchers recommended that efforts should be made to harmonize stake
holders from all countries through the facilitations of the United Nations. Researchers further recom-
mended that technological interrelations is needed in order to monitor internet and related resources to
check on abuse or misuse of music resources.
Keywords: Music Copyright; Musicians’ Copyright; Music Educators; Intellectual Property Copyright
Owners; Copyright Protection; Copyright Violator
The most burning issue in copyright protection and manage-
ment systems of the rights of the creators of intellectual prop-
erty is the effort of creating a balance between music teachers
and copyright owners. Copyright owners seem to be skeptic
about the way music teachers use their works in the education
system. Although, most music teachers have a strong argument
that they use the works for nonprofit uses, copyright owners
always find it difficult to come to terms with the TEACH Act
(The Technology, Educational and Copyright Harmonization
Act) which gave teachers the right to use all copyright owners’
works for non-profit educational uses. However, the most im-
portant issue lies in the actual terms of the TEACH Act which
seeks to create a balance of power between copyright owners
and music teachers. In this way the equilibrium will be based
on the level of conviction among the copyright owners, as they
need to be convinced that the Act is not only for teachers.
Principles of the TEACH Act
The relevancy of the principles of the TEACH Act can be
felt in the way it attempt to create a balance between music
teachers and copyright owners. The Act tries to justify the use
of copyrighted works for free in schools and colleges. However,
this did not go well with copyright owners as they find it diffi-
cult to accept. This means that, these principles while they are
welcomed by music teachers, they were received in a different
way by copyright owners. The Act gives teachers a different set
of rights on top of the already existing fair use. Teachers under
section 110 (2) are allowed to perform copyrighted works in the
classroom. The TEACH Act expands the capacity of teachers’
rights to execute and display works as well as making copies
integral to such performances. The same material under section
110 (2) can be used by the same teacher when teaching distant
students. It is at this stage that copyright owners are worried
that the distance between teachers and students can be manipu-
lated by copyright violators as they seek to use their works for
free. However, the Act further stated that the copyrighted mate-
rial should not be available digitally in a format free from
technological protection. Therefore, this goes back to the issue
of fair use where it is regarded as the only way that can best be
viewed as the right of authority for making copies in any given
environment (
Section 112 (2) provided some significant changes to the
rights of copyright owners and just like other principles of the
TEACH Act these changes were greeted with suspicion by
copyright owners as the provision gave teachers more rights.
Some of the rights which were expanded under section 112 (2)
are as follows:
Transmitting performances of all of a non-dramatic literary
or musical work.
Transmitting reasonable and limited portions of any other
Transmitting displays of any work in amounts comparable
to typical face-face displays (TEACH Act 2002).
Therefore, section 112 (2) managed to provide some of the
shortcomings of the previous provisions of section110 which
was failing to restrict the number of people and materials in-
volved in the use of copyrighted material.
*Corresponding author. Section 110 (2) excluded quite a number of issues. The sec-
tion only covered accredited non-profit educational organiza-
tion. Here, the works which was specifically produced for the
use in class in the digital distance education market. In this case
all works that are sourced individual by students was not men-
tioned. Some of these works include; books and course packs
which students normally purchase or unlawfully secure. This
throws the copyrighted works in jeopardy as the day to day
activities of copyrighted regulations are violated in schools. As
a result of these unclear circumstances the balance of power
between music teachers and copyright owners is weakened.
Hence, to strengthen this balance of power, principles of sec-
tion 110 (2) of the TEACH Act ought to be evaluated and its
link with the Doctrine of fair use need to be clarified.
The Doctrine of Fair Use
According to Erickson, Hearn and Halloran (1983) fair use
tend to cut the exclusive rights of the copyright owners. The
Doctrine came as a result of what was by then regarded as a
justified copying. In this case the copying was viewed as fair.
The hallmark of this fair use is guided by the potential sales of
original work and the amount of the portion of the copyrighted
work used. It is through this whole issue of fair use that some
of the principles of the TEACH Act were formulated. The gen-
eral believe and expectation that the copyrighted work is used
specifically for classroom lessons. This principle is stated in
section 110 (2) of the amended section of the TEACH Act. It is
stated that, display of any amount of work should be done in
classrooms (Tysver, 1996). However, other sections continue to
give more rights to teachers. For example, teachers can have
access to copyrighted work and use it anywhere, but given that
all technological conditions have been met. The rights of teach-
ers and students were further expanded when section 110 (2)
stated that, the copyright work is only for students officially
enrolled in that course (Gasaway, 2002). Therefore, there is a
need of revisiting the Doctrine of fair use and harmonize its
principles with the principles of the TEACH Act. It is through
this harmonization approach that the intellectual property can
develop a sense of trust that music teachers use their works for
fair use and nonprofit making educational purposes.
Striking a balance of power between educators and copyright
owners cannot be realized without revisiting the idea of fair use.
The coming of the TEACH Act did not mean the eradication of
fair use in the copyright regulation. It should be noted that fair
use remains relevant because the issues that are covered by the
TEACH Act merely focus on small portions of the uses of elec-
tronic resources which are sometimes used by music teachers. It
only extends to class performances and displays, and does not
cover for example digital delivery of supplemental reading
material. What it means is that, there is a need to continue to
rely on the Doctrine of fair use so that copyright owners will
agree on the effective use of the new principle of the TEACH
Act. Daniel (1999) also pointed out that, violation of fair use
will result in creating an imbalance between teachers and copy-
right owners. Hence, a balance of power can only be attained
through excessive application of some of the issue of the fair
Balance of Power between Music Teachers and
Copyright Owners
It is very clear that the balance of power between music
teachers and copyright owners is entirely governed by the
TEACH Act of 2002. The act created a mutual understanding
among copyright owners that their works are not abused by
music teachers in the education system. Copyright owners feel
robbed to see their works being used by other people such as
teachers who did not even put a hand in creating the work.
However, the only issue that consoles them is the whole idea
that their works are being used to promote education through
non-profit channels. On the other hand, music teachers although
they are bound by the TEACH Act to use the works for non-
profit education purposes they appear to have nothing to lose.
Therefore, it is these unclear characteristics of a modern music
teacher which worries copyright owners and as a result they
feel threatened by the TEACH Act (Jerry, 1980).
Music teachers just like any other member of the “Free Cul-
ture” (which generally refers to the new society of free music
which was created by modern technology of internet) are
somehow treated as posing potential threat to intellectual prop-
erty. Creators of intellectual property who are inventors, writers,
artists, software engineers, together with a variety of companies
that employ them created a shake balance of power between
copyright owners mentioned above and teachers. This weak
balance of power is twofold; firstly, the intellectual property
continues to label music teachers as part and parcel of the gen-
eral populace that steals their works in the name of “Free Cul-
ture”. Secondly, the intellectual property do not trust some of
the terms of the TEACH Act. One of the terms of the TEACH
Act instruct teachers to destroy the copyright material photo-
copied after a certain period of learning using the same material,
for example after completing a given topic or class. This means
both teachers and their students will not be allowed to use
copyrighted material after completing a certain subject, course
or program (Goldstein, 2007). However, the argument which is
being put forward by the intellectual property is that, there are
no clear provisions and structures that sort of monitoring
whether teachers and their students will destroy or keep the
copyrighted material after school. Therefore, a balance of
power can be created if the TEACH Act is amended as there is
a need to put in process a well structured monitoring provision.
Impact of the TEACH Act to Copyright Owners
The rights of the creators of intellectual property was se-
verely affected by the TEACH Act in quite a number of areas.
The fact that teachers are given exclusive rights to make copies
as long as they are for educational uses created loopholes which
occurred in schools and out of the school environment. In this
case the intellectual property is crying foul as the Act tends to
favor teachers. Teachers are favored because the fair use al-
ready gave them powers to copy and on top of that the TEACH
Act further strengthen the powers of music teachers. Hence, the
impact is on the fact that, the TEACH Act created teachers as
bridges between copyright owners and copyright violators. In
the name of “fair use, educational use and non-profit use”, the
copyrighted material passes through the hands of the teachers
and students then to the copyright violators. As a result sales of
the copyrighted material such as books, music, movies and so
forth will drop because consumers will always find cheaper
ones in the streets. Therefore, it is through this channel which
was created by the TEACH Act that the copyrighted material is
The Act tries to protect the rights of owners of intellectual
Copyright © 2012 SciRe s .
Copyright © 2012 SciRe s . 207
property through its restrictions. The Act put much emphasis on
the dissemination of information to various educational organi-
zations. These restrictions are realized through time frames of
photocopied material, amount of work to be copied and that
only enrolled students should have excess to copied material.
What it means is that, the Act also provided some kind of a
positive impact on the rights of intellectual property, they stand
to benefit from some of the conditions of the principles of the
TEACH Act. However, it should be noted that the major impact
of this Act was felt in the way it handle the issue of distance
education. Almost 95% of the work of distance education is
done through the internet; hence, the copyrighted work is prone
to violation. The Act failed to protect rights of creators of intel-
lectual property as it cannot control the activities going on
through the internet. More important is the fact that, most of the
materials send to students who are enrolled on distance educa-
tion cannot be returned or destroyed as the Act put those re-
quirements. Therefore, creators of intellectual property views
the Act as shake and require a lot of changes as it fails to create
the required protection of their works from copyright violators.
Furthermore, it can be argued that more advantages are given
to teachers by the Act as they keep on hiding under the same
principles that created the imbalances. Those law makers who
can put some changes seem to be convinced that all is going
well because the views of the copyright owners are not heard.
This also means that creators of intellectual property should
find legal channels in order for them to air their grievances. As
a result the battle is not only between teachers and copyright
owners, but there is tension among copyright owners as some
of them have a feeling that the Act is protecting their works.
Powell (2009) pointed out that, some kind of a guiding princi-
ple was put into process to govern the protection of intellectual
property and it is through these sentiments that some creators of
intellectual property feel safe. Therefore, what it means is that
there is lack of a unitary voice among the creators of intellec-
tual property and as long as this division existed a balance of
power will be difficult to be achieved.
Teachers unlike creators of intellectual property are united as
they share the copyrighted material with other schools in an
amicable manner and they try to follow the stipulated regula-
tions very well. It is through this unity that their position is
strengthened when it comes to issues of copyright regulations.
However, changes of section 110 (2) which widens the ground
were the copyrighted material is used tries to bring some useful
changes which can help to create the much needed balance
between the teachers and copyright owners. Some of the
changes are indicated below;
Increased the range of permitted copyrighted materials.
Increased the number of receiving locations.
Storage of transmitted material.
Digitalizing of analogue materials
A closer look at these principles will reveal that the rights of
copyright owners are jeopardized and this appear to concur
with the above mentioned issues of storage and range of per-
mitted materials. However, this view seems to be strong on
paper, but when these principles are applied in schools and
other educational institutions, the rights of copyright owners are
clearly observed and protected. For example, the issue of digi-
talizing analogue materials will increase the safety conditions
of copyrighted materials as it will be easy for libraries, labs and
administrators to protect the materials from spilling in the
hands of copyright violators. On top of this administrators to-
gether with the libraries will be able to clearly control as well as
monitoring the use of copyrighted material by both the teachers
and their students. Therefore, so much can be said about the
fact that the Act is heavily in favor of teachers, but it must be
observed that, too much restriction on copyrighted works will
also create imbalances as buyers of these works will fail to
purchase these works.
A balance of power between music teachers and copyright
owners can only be realized if all the two sides are certified
with the current state of affairs in the free world where there is
a lot of copyright infringement. The new technology creates the
free culture and this habit should also be controlled by the
technology as it is a modern problem. The same issue applies to
the tension between copyright owners and teachers, there is a
need of providing some changes to the TEACH Act so that it
will handle the imbalances which the Act indirectly created in
an amicable way. Therefore, the argument which was poised by
the discussion was on the ability of the Act to convince creators
of intellectual property that their works are safe in the hands of
teachers and in this way a balance between the two can be cre-
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Laura, N. G. (25 November 2002). TEACH Act-Amended Section
Lehman A. B. (1998). Final report to the commissioner on the conclu-
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Powell, D. S. (2009). An introduction to education, choosing your
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