From School Library Journal:
More and more teachers and librarians want to reach their students and young patrons after hours by recording themselves reading books and posting them online for students to watch from home. They are concerned, however, about copyright law. Is it legal to publicly post these recordings? Can only certain books be recorded and posted?
SLJ asked American Library Association’s director of public policy and advocacy Carrie Russell to break down the copyright issues, if any, of these digital storytimes.
Storytime is a quintessential service of public and school libraries, right up there with library lending. It instills an invaluable love of reading in children and contributes to early literacy and later success at school. One would be hard pressed to find a person who does not value storytime.
Teachers and librarians asking if storytime is an infringement of copyright law when the reading is recorded and uploaded to YouTube or Facebook are essentially asking if the social benefits of storytime are lost once recorded and delivered by digital means. Common sense would tell us that storytime does not become illegal when it is digital, but the legal concern is real—technically.
In the online environment, copyright law does not say that user and library rights also apply to the digital environment. The copyright law was written in a different time, but Congress was prescient when including fair use which is technology-neutral. It allows us to assess a concern when we are just not sure, even in the digital environment. What we do know is that storytime online or in person is a “public performance,” an exclusive right of the copyright holder. The common fear in the digital environment is that the possibilities of infringement and market replacement are compounded.
. . . .
Because the law and the courts do not explicitly state that physical or digital storytime is lawful—which confounds people who want a definite answer—we must think and make a judgment call. We can make this determination in a structured way by considering the four factors of fair use:
- the purpose and character of your use
- the nature of the copyrighted work
- the amount and substantiality of the portion taken, and
- the effect of the use upon the potential market
Making this decision should not be a burden in any sense of the word—it is a measured, reasonable judgment call.
We know that the purpose—the first factor of fair use—is a non-profit, educational and socially beneficial use, which is a good indication that the use is fair. The fourth factor—effect on the market for the work—is tiny, if not nonexistent. Highlighting a book is promotional, even when the performance is on YouTube. One is not displacing a sale or serving as a substitute to the work—even I would argue—if the work is available for purchase in audiobook form. An audiobook is not the same as storytime.
The second and third factors of fair use assess the level of creativity of the work and the amount used, respectively. Storytime uses highly creative works, even newly published works, read in their entirety. Storytime requires that one read aloud from an entire children’s book. Storytime will always fail on the second and third factors. In this situation, one can still make the judgment that storytime is lawful by considering the first and fourth factor only. In every fair-use analysis, one or two of the factors will weigh more heavily on the others. They are rarely equal in importance.
Link to the rest at School Library Journal
PG says that any copyright owner who sues a school or library over storytime deserves substantial social and reputational penalties in addition to anything a court might do.
PG would be interested to hear of any disputes that arise on this topic.