Voice of Reason

Are educators allowed to make their own audiobooks? It depends.

By Carrie Russell -- School Library Journal, 8/1/2006

Our teachers read aloud to students who arrive before school begins. To help out, I was thinking of recording our state’s book award nominees to share with our students. I’ve searched for commercial recordings of those titles, but sadly only a few of them are available. Is it legal to make my own recordings? —Catherine L. Nelson, library media specialist Northside Elementary School, Rock Hill, SC

Let’s refer to fair use—Section 107 of the copyright law. Readers may remember that fair use—lawfully exercising a copyright (such as the right of reproduction) without the prior authorization of the rights holder—is determined by considering four factors: 1) the purpose of the use; 2) the nature of the work; 3) the amount of the work that’s used; and 4) the effect of the use on the work’s market. These are the same criteria that a judge would consider when listening to an infringement case.

Since making an audio recording and sharing it with students in a nonprofit institution is educational in nature, the purpose of this particular use is fair. Courts have held that works that are “more creative,” such as novels, poems, plays, and movies, deserve more protection than newspaper or scholarly articles or TV newscasts, so according to the second fair-use factor, this use is not fair.

As for the amount of the work being used, the guidelines say that using a small amount of a work is fairer than using a large amount of it. (Section 107 does not recommend a specific percentage or magic amount.) So if an entire book is recorded, that would more than likely suggest that the use is unfair.

Catherine did the right thing when she checked to see if she could purchase commercial recordings of the titles. If an audio version is available, then by not buying it, one is arguably affecting the work’s market. For those titles that do not have an audio format, there is no effect on the market. But we also need to consider a work’s potential market. If one made audio copies of the work before the rights holder did and sold the copies in the marketplace, there would be an impact on the work’s market. It’s likely that the publishers of the state award-nominated books will eventually decide to create their own audio versions. But in the meantime, making a single copy of each title will have a very limited effect on their marketplace.

Sometimes, when you’re doing a fair-use analysis, you may discover that there are two factors that suggest the use is fair and two that argue against it. What to do? This is when judgment comes into play, especially if one of the factors seems more important than the others. If you follow fair-use court rulings, you’ll notice that judges will often find one or two factors more significant than the others. In our particular case, I think the fourth factor holds the key. The negative impact on a work’s market is nil since a sale isn’t lost. On the other hand, the publishers may decide to make audio recordings of the works. If that happens, then you should buy them. In the meantime, it’s fine to make your own recordings as long as they’re only used with your students.

Back in the days before digital music and file sharing, people often went to their local public library, checked out a CD (or even an LP), brought it home, and recorded its content onto a cassette tape. I was under the impression that this was permitted under fair-use guidelines, as long as only one copy was made for private use. Am I right? —Michael Weiss, doctoral student University of Michigan, Ann Arbor, MI

It’s a copyright infringement to make a copy of a CD that one doesn’t own. Don’t confuse fair use, as found in the copyright law, with “personal fair use”—a term that’s in the public lexicon (but not in the copyright law). Personal fair use refers to making a copy of a musical work that you own, generally from one format to another (say, from an LP to a cassette) or taping a TV program to watch at a later time (a practice that the Supreme Court declared, in a case involving Sony, was fine). Because this type of personal copying occurs so frequently, it has become the norm. It makes sense to the public, and the courts haven’t ruled otherwise.

Author Information

Carrie Russell is the American Library Association’s copyright specialist. She will answer selected questions from readers. Send questions to slj@reedbusiness.com, with “copyright” in the subject line. Be sure to include your title and the name of your school or public library. Note: Carrie’s comments are not to be considered legal advice.

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