TV Guide

Is it legal for librarians to tape television programs?

By Carrie Russell -- School Library Journal, 3/1/2004

My principal wants me to tape an ABC after-school special. I suggested that we should, instead, purchase copies of it. But after calling Disney and ABC, I discovered that the program's not for sale. I told my principal that I'm still not allowed to make copies, but now he thinks I'm wacko. Am I?
—Colin Neenan, librarian, Madison Middle School, Trumbull, CT

You are not wacko. It is an infringement to copy a television program without the prior permission of the copyright holder unless there is an exception in the copyright law. In this case, the exception to consider is fair use. It is probably always fair use to make copies when the program is not available for purchase and the copies will be used in class and retained only for the brief amount of time necessary to meet the teaching objectives. It is probably not fair use to systematically copy TV programs and add them to the library's collection.

Shortly after Congress passed the Copyright Act of 1976, it made a recommendation that stakeholders (authors, teachers, publishers, and librarians) meet to describe various types of uses of copyrighted works (primarily for teaching purposes) that might be considered 'fair uses.' This recommendation led to the various documents we now refer to as fair-use guidelines. These guidelines are not part of the copyright law, but concerned parties thought it would be helpful to have some examples of fair uses.

One set of guidelines is called 'Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes,' available for downloading from the U.S. Copyright Office (www.loc.gov/copyright) or at other sites such as www.pbs.org/teachersource/copyright/copyright_fairuse.shtm. The guidelines state that programs that air for free on network or public television (as opposed to commercial cable or pay TV) can be copied by a librarian at the request of a teacher. The library can retain a copy for 45 consecutive calendar days; then the program must be erased. The copy may be viewed once in a class during the first 10 days and then a second time to clarify points or when a second viewing is necessary to meet the teaching goals.

A caveat: these guidelines are not law. They are statements that groups of individuals agreed are probably fair uses. They do not have the force or effect of law. They will not protect you from copyright infringement, and they probably will not be considered in court. Having said that, the off-air guidelines make good sense to me. If the video is available for purchase, the 45-day leeway gives a librarian time to order and purchase the program for future use. And when programs are not available for purchase, teachers still have a relatively risk-free way to use the programs in the classroom.

We've been asked to tape our storytime program so it can be shown on our city's nonprofit public cable channel. Do we need to obtain permission from the books' authors or publishers?
—Liz Natteford, library volunteer, Wilsonville (OR) Public Library

Maybe. It's a question of fair use. Is it lawful in this instance to exercise the right of public performance—an exclusive right of the copyright holder—without the prior permission of the copyright holder? Consider the four factors: the purpose of the use, the nature of the work, the amount of the work you are going to use, and the effect on the market for the work. Is storytime for nonprofit, educational purposes? Is the use most likely fair because storytime will be broadcast on a cable channel set aside by federal regulation for the use of the public rather than on a commercial cable channel? Will sales of the work suffer as a result of the broadcasts? Is there a market for this type of use? Was the work lawfully acquired? Will the use promote sales of the work? All of these elements (and more) should be considered when making a fair-use determination.

Fair use is a judgment call that the library will have to make. There are no clear-cut answers. Your library may feel safer if permission is obtained for each book. Other libraries may feel that storytime, even when broadcast on a publicly accessible cable channel, is probably fair. They may also feel an obligation to the public to exercise fair use fully in order to keep it alive and kicking.