Copyright Questions of the Month: Downloading eBooks

Q If I buy a Nook book download via a personal credit card, I can put it on six devices. But does that mean that if I then use those devices and Nooks in a library that I can circulate them? I'd like to know which Barnes & Noble location said that’s allowed.

A It doesn’t really matter what the store tells you. The electronic terms of service will cover your use of the hardware and software. I know the print is small, but you need to read it (or better yet, have your district’s legal counsel read it) to see exactly what rights you have purchased.

WHOLE SONGS IN MULTIMEDIA

Q: Can students use a whole song in a product and then put the product on the Internet? Some teachers ask what’s the instructional reason for using a popular song for background mood?

A: There are so many factual variations in each use that it is difficult to generalize. Typically a use in class is usually no problem, even as part of a PowerPoint project. You can use the multimedia guidelines for limits that you know are safe, but if you need to use more, you can fall back on the standard fair use assessment. What really pushes the envelope is putting things online. The laws haven’t caught up with the technological innovations in education yet, and courts may not be as onboard with Internet publication as educators are. So while you may be able to claim a broad fair use exemption for in-class uses, the more widely you distribute the work, the less your exemption will apply. The Internet is pretty broad—around the world—so that’s why you probably want to dial back the use if you are putting things on an open website. Putting something on a restricted class webpage or on an intranet are somewhere in the middle.

BOOK REVIEW BOOK COVERS

Q: For a book review in the school newspaper that is sold to students for a nominal fee, can we take an image from Amazon of a book cover and print it in the newspaper? If not, can we take a picture of the book and put it in the paper?

A: On a non-copyright basis, most images on the web are typically only 72 dpi, which is not print publication quality. The low quality image you download from Amazon may not be what you need for your use. But as far as copyright is concerned, you can certainly take a photo of the book and use it with a review, since it is criticism or commentary, and the excerpt is very small and would not take the place of the work.

RECORDING AN OUT OF PRINT BOOK

Q: I have some teachers who are teaching a novel that doesn’t have an audio version available. This is a book that is out of print and has never existed in audio form. We would like to record the book. Our purpose is to use the audio version for an assisted-learning situation. The teacher would read the book and record it herself. What would you recommend as recording options? We want to record this for use next year, too.

A: There are library exceptions that might allow this recording. Section 108 of the copyright law allows a single copy if the recording is made without commercial advantage, if the library is open to the public, and if the recording contains a notice of copyright. The last two are probably simple to accommodate, but the first one can sometimes be problematic. If the work is available in audio format, making your own copy would be considered a commercial advantage since you are avoiding purchasing a commercially available product. Since you say that the work has never been available in audio format, a library may be able to make this copy. The Digital Millennium Copyright Act allows libraries to make up to three copies of a work the library owns, but only for the purpose of archiving a work that is damaged, deteriorating, lost, or stolen. To qualify for this exception, the library must be able to say that it has diligently looked for a copy to purchase, but an unused one is not available at a reasonable price. If the format in which the work is found is obsolete, the library may make a transfer to a digital medium for the purpose of preservation. To be considered obsolete, the hardware on which the original is played must not be available in the marketplace. Eight-track tapes and Betamax videotapes are obsolete; cassette tapes and VHS videotapes are not yet obsolete. Any digital copies made may not leave the premises of the library. All the exceptions explained above apply to libraries but not to classroom teachers. So if these recordings are essential, the library should be involved. The library can make a single copy for the classroom teacher if the library determines that 1) a copy cannot be obtained at a fair price; 2) the copy made becomes the property of the teacher; 3) the library has no indication that the copy will be used for anything other than private research and scholarship; and 4) the library displays a statutory notice and has a similar notice on its copy order form. It is important to note that if the library has accepted terms of use or a license on the work requested, the library must comply with the license rather than the permissions of this section of the law.

Every effort is made to provide accurate, up to date information in response to copyright questions. However, this column is not intended to take the place of legal advice. For more information, consult your school district’s attorney.