A Common Cover-up

We’d like to display our DVDs—just the cases, not the contents. Can we make copies of the original covers (which have the bar codes) to circulate along with the actual discs?

Yes, it’s fine to make copies of the covers. There are two key reasons why your use is a fair one: the library purchased the DVDs for nonprofit, educational purposes, and your copies will not have a negative effect on the works’ sales.

It just so happens that I was lurking on the Video Round Table discussion group when a similar question came up: Can copies of DVD covers be posted on a library’s Web site? While film vendors can’t determine for you whether a use is fair or not (that’s something you must do), those who responded to the question agreed that the use was fair and, in fact, thought it was a good way to promote films.

Our school has a small number of visually impaired students who are learning to read Braille. Would it violate the copyright law if we made audiotapes of our Braille books so students can follow along as they practice reading? Only those students who are learning Braille would have access to the books and recordings.

Also, Section 121 of the copyright law permits “an authorized entity to reproduce or to distribute copies or phonorecords of a previously published, nondramatic literary work if such copies or phonorecords are reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities.” Are elementary schools “authorized entities”? And is an audiocassette a “specialized” format?

Section 121, also known as “the Chafee amendment” (for Senator John Chafee who introduced the legislation), is more exacting than it sounds—and it doesn’t allow elementary schools to make audio recordings. But the Library of Congress’s National Library Service for the Blind and Physically Handicapped (NLS)—whose primary purpose is to serve those who are blind or physically disabled—offers audiocassettes as part of its Talking Books program. NLS has regional libraries throughout the country. To find the closest one, visit its Web site at www.loc.gov/nls/index.html. “Specialized” formats refer to those that are used exclusively by the blind. Since a sighted person can use an audiocassette, it doesn’t fit the definition.

But all is not lost. You can make audiocassettes for your visually impaired students under the fair-use exemption. When you exercise fair use, you’re asserting that although you’re making a copy, you feel that in this particular situation a court would deem the use “fair” and, therefore, not infringing. By the way, although we can never know for sure that a use is fair (since “only a court can decide”), if history is our guide, the likelihood of a librarian going to court for copyright infringement is practically zero.

As you know, fair use is based on four factors: the purpose of the use, the nature of the publication, the amount of the work being used, and the effect of the use on the work’s market. In this instance, the purpose of your use is to help visually impaired students learn Braille. That’s a socially beneficial, nonprofit, educational use—an indication that your use may be a fair one. My guess is that the publications you’d like to record are both fiction and nonfiction. The use of fictional works tends to lean toward the “unfair” side of the continuum, while the opposite is true for works of nonfiction. That means that an analysis of the second fair-use factor (the nature of the publication) results in a stalemate. (Of course, you could also analyze each individual title.) Since you’re planning to make a recording of the entire book—factor three leans toward an unfair use. The final factor is the effect on the work’s market. Assuming that you can’t purchase commercial audio recordings of the necessary works, there’s no effect on their sales. Overall, I think your use is a fair one—as long as it’s restricted to those students who need additional support while they’re learning Braille.