More and more teachers and librarians want to reach their students and young patrons after hours by recording themselves reading books and posting them online for students to watch from home. They are concerned, however, about copyright law. Is it legal to publicly post these recordings? Can only certain books be recorded and posted? 

SLJ asked American Library Association’s director of public policy and advocacy Carrie Russell to break down the copyright issues, if any, of these digital storytimes.

Storytime is a quintessential service of public and school libraries, right up there with library lending. It instills an invaluable love of reading in children and contributes to early literacy and later success at school. One would be hard pressed to find a person who does not value storytime.

Teachers and librarians asking if storytime is an infringement of copyright law when the reading is recorded and uploaded to YouTube or Facebook are essentially asking if the social benefits of storytime are lost once recorded and delivered by digital means. Common sense would tell us that storytime does not become illegal when it is digital, but the legal concern is real—technically.

In the online environment, copyright law does not say that user and library rights also apply to the digital environment. The copyright law was written in a different time, but Congress was prescient when including fair use which is technology-neutral. It allows us to assess a concern when we are just not sure, even in the digital environment. What we do know is that storytime online or in person is a “public performance,” an exclusive right of the copyright holder. The common fear in the digital environment is that the possibilities of infringement and market replacement are compounded.

An activity is infringing when one uses an exclusive right without the prior authorization from the rights holder. The rights holder is supposed to be the sole individual or entity that can market a work, and one way to market a work is through the exclusive right of public performance—storytelling, theatrical productions, Netflix movies. But storytime is an infringement that no one questions when the reading occurs in the library. Its value to the public outweighs the economic interests of the rights holder.

Because the law and the courts do not explicitly state that physical or digital storytime is lawful—which confounds people who want a definite answer—we must think and make a judgment call. We can make this determination in a structured way by considering the four factors of fair use:

•  the purpose and character of your use
•  the nature of the copyrighted work
•  the amount and substantiality of the portion taken, and
•  the effect of the use upon the potential market

Making this decision should not be a burden in any sense of the word—it is a measured, reasonable judgment call.

We know that the purpose—the first factor of fair use—is a non-profit, educational and socially beneficial use, which is a good indication that the use is fair. The fourth factor—effect on the market for the work—is tiny, if not nonexistent. Highlighting a book is promotional, even when the performance is on YouTube. One is not displacing a sale or serving as a substitute to the work—even I would argue—if the work is available for purchase in audiobook form. An audiobook is not the same as storytime.

The second and third factors of fair use assess the level of creativity of the work and the amount used, respectively. Storytime uses highly creative works, even newly published works, read in their entirety. Storytime requires that one read aloud from an entire children’s book. Storytime will always fail on the second and third factors. In this situation, one can still make the judgment that storytime is lawful by considering the first and fourth factor only. In every fair-use analysis, one or two of the factors will weigh more heavily on the others. They are rarely equal in importance.

In addition to fair use, other factors can help you think through a copyright situation. The fact that hundreds of storytime performances can be found on YouTube and Facebook gives you an indication that the risk is low, and more significantly, a lot of people do not think that digital storytime is against the law. The public's behavior shapes the law and how we interpret it.

Yes, a rights holder could sue a librarian for reading on YouTube. A rights holder can decide to sue whomever they want. But this is ridiculous—who would sue a library or teacher for digital storytime? The case would be thrown out of court. The rights holder that brings the lawsuit would look despicable and get bad press. Moreover, nonprofit state institutions like many libraries and schools have liability protection and cannot be charged statutory damages—going to court is just not worth the trouble.

There are a cautious few who want to get permission before reading a book online “just to be safe.” They may feel that they should pay a fee to read aloud online. For those people, recognize that if you can pay a fee or ask permission does not mean that you should. That is not how the law works. If your use is fair, you do not have to seek permission. Moreover, establishing a permissions market for storytime by our own behavior would not be prudent and certainly not in the public interest.