The Best Intentions…

Two local groups would like to record some children's books and donate the audiotapes to nearby hospitals. Since only the copyright holder has the right to make derivative copies of the books, I informed both groups that this is a violation of copyright law unless permission is first obtained from the publisher. What do you think?
—Cheryl King, librarian
Agana Heights Elementary School, Guam

Creating audiotapes from children's books is an infringement of copyright, but could this particular instance be considered "fair use"? Readers of this column may recall that the fair-use doctrine lists four factors that determine if an otherwise infringing use is lawful. Let's run through the factors. The purpose of this specific use is nonprofit (which is good), but it is not linked to a nonprofit, educational use (which would be better). The materials used—children's books—are published works (good), but they are probably highly creative works, which lean toward a higher level of protection than if the materials were of a more factual nature. The groups want to use the entire copyrighted works, which also tends to run contrary to fair use. Finally, we must consider the effect on the market. If commercial audiotapes of these books are currently available on the market (let's assume for the moment that they are), this too would lean toward a negative fair-use ruling. So, my advice is, get permission from the copyright holder.

The fair-use analysis is a lot trickier if we know—after a diligent search—that the audiotapes are not available on the market. Then, the fair-use analysis is ambiguous or "borderline." When faced with a borderline analysis, the user needs to consider the following questions: Should I make the tapes without seeking permission? Do I have additional reasons to consider the use lawful? Is it time to consult an attorney?

A fair-use analysis rarely yields an outcome that is beyond a shadow of a doubt. My hope is that librarians will become more comfortable when dealing with this kind of ambiguity. My advice? Provide your users with professional, informed (not legal) advice, realize that frequently there are no definitive answers to many copyright queries, and let it go. You have done your job.

Our public libraries may be getting "multifunctional devices" to replace our photocopiers and computer printers for the public. In addition to copying and printing, the devices can scan and e-mail print materials. Is the copyright warning that we have on the photocopier sufficient for these new functions? Is creating digital copies legally different from creating photocopies? Do you have any comments on the wisdom of offering the public scanning capability in a library?
—Carolyn Caywood, librarian
Bayside Library and Special Services, Virginia Beach, VA

Yes, you can label the multipurpose devices with the same copyright warning that is used on your photocopiers. No problem. Now the hard question: Are digital copies legally different from print photocopies? I do not think we know that yet. We do know that incidental copies created in RAM are not considered regular copies. Recently, the U.S. Copyright Office voiced the opinion that the first-sale doctrine does not apply to digital copies. Of course, copyright holders are more concerned about digital copies because they are so easily copied and distributed. The "digital copy question" is the focus of the current copyright debate on Capitol Hill. The Digital Millennium Copyright Act of 1998 tried to address these digital issues but not to the satisfaction of most of the stakeholders. More changes are on the horizon and it is likely that many of these changes will limit what users can do with digital materials when compared to print materials. Time will tell.

If libraries can afford to enhance services by offering the public scanning capabilities, more power to them. It is true that users may have another way to infringe copyright, but I would not be too worried. Librarians cannot and should not want to be responsible for the actions of their users. We are not the copyright police.