CDs, iPods, and Audiobooks

It’s never been easier to copy recordings. But is it legal?

By Carrie Russell -- School Library Journal, 2/1/2007

One of the CDs in our 23-disc audiobook of Harry Potter and the Order of the Phoenix is damaged. Is it legal for us to replace the damaged CD by copying an undamaged one? Or must we replace the entire set? By the way, it would cost us $41.25 (after our library discount) to replace the complete audiobook. —Rachel Q. Davis, children’s librarian, Thomas Memorial Library, Cape Elizabeth, ME

Section 108 of the copyright law allows copying of protected works for replacement purposes, but only under very specific conditions. If a library is able to purchase a replacement copy in the marketplace for a fair price, then it must buy another one. The $41.25 price you mentioned (discounted, no less) sounds reasonable to me, and I recommend that you purchase the entire audiobook.

Our school library has started buying digital audiobooks from audio.com. So far, we’ve purchased three of them and downloaded the files onto our iPods, which we then loan to students. Is that legal? Also, when an audiobook isn’t available as a digital file, we buy the CD version. Can we make a backup copy of it for our library?—Karen Longa, librarian, The Foote School, New Haven, CT

Loading audiobooks onto your iPods is fine. After all, you’re merely using a technology (the iPod) that’s necessary to play a recording that you’ve lawfully acquired. You should label each iPod with a warning that states that further copying or distribution of the downloaded files is an infringement of the copyright law.

It’s easy to understand why you might want to make a copy of your audiobooks on CD—in case the originals are lost or damaged. But you can’t legally make a backup copy. In general, you can never make an entire copy of a work that can be purchased in the marketplace for a fair price (Section 108 again). The exception to this rule involves software—one backup copy of a software program may be made, but audiobooks aren’t considered to be software.

Making a digital audio copy of a CD (even when the digital audio version is not for sale) is an infringement—not because you’re changing the format, but because you’re making a copy. There may be a situation where the digital audio format is required to accomplish a teaching goal (for instance, a distance-education class in which the students are required to hear a story, and the only possible way to accomplish that goal is to deliver the recording over a digital network), but those situations are not common. And even then, you would need to do a fair-use analysis (in which you consider the four factors of fair use). Another possibility is, if your school is compliant with the Technology, Education, and Copyright Harmonization Act—better known as TEACH—you could see if its exemptions applied to your situation, thus making it appropriate to make a copy. You might also want to consider letting students listen to the audiobooks on their own iPods.

Here’s another way of looking at this issue: libraries, as we all know, routinely loan records to their customers, who then take the albums home to play them on their turntables. Is it necessary for libraries to make copies of their LPs? Of course not. In general, we can say that if you purchase one copy of an audiobook, you can only lend that one copy. When an audiobook is checked out, the library doesn’t retain a copy of it during the lending period.

Of course, all of these scenarios can be tossed out the window if these audiobooks were acquired through a licensing agreement with audio.com. If a contract has been issued at the time of purchase, the terms of the license trump any rights or exceptions that we may have had under the copyright law. In other words, you must follow the rules outlined in the contract or be in violation of them. Contract terms may be more or less generous than the exemptions granted by the copyright law.

By the way, the U.S. Copyright Office has appointed a study group to review Section 108 to determine if its exemption should be modified for digital resources. The group’s final report is expected in late spring 2007. For more information on the study, visit www.copyright.gov/section108.