Q: My school has purchased 500 copies of a course textbook. Some students want an electronic version of the textbook instead. Can we scan the book, save it as a PDF, put it on a flash drive, and distribute the flash drive to students instead of issuing them a textbook that we purchased? At the end of the year, students would then return the flash drive and its contents.

A: This question can be assessed with a standard fair use analysis. One of the essential factors in doing a fair use assessment is whether the copy will replace the original (factor four). Each time you scan a book and put it on a flash drive, you have increased the number of books you own by one. And especially if the publisher sells an e-book version, you have deprived the publisher of a sale in that format. Looking at the other three of the fair use factors, this plan doesn’t look promising. Your use is nonprofit educational, but there is no value added or commentary to strengthen the assessment. So factor one is in your favor, at least marginally. A textbook is basically factual, but the learning activities, photos, etc. are creative, so factor two is leaning against you. Factor three considers how much of the work you are reproducing. In your plan, you would reproduce the entire work, so this factor is strongly against you. The plan does not appear to be favorable to a fair use defense.

CREATING ADAPTED VERSIONS FOR DISABLED STUDENTS

Q: A visually impaired second grade student would like to read the Littles series of books by John Peterson. He needs books that are large print or e-books so that he can increase the print size. I did some research and it seems like only the original book, called The Littles, comes in large print. How can I get the other books in the series in large print or e-book format? Is it copyright infringement if I scan my library copies so that he can read the books on his iPad?

A: Under the authority of section 121, you may make adaptive copies (copies in a specialized format exclusively for use by “blind or other persons with disabilities”) if you are certain there are no large print versions available anywhere. But check with your state library, the Library of Congress Division of Blind and Physically Handicapped, and NIMEC first. They are supposed to keep copies available for loan. If you do make the large print or electronic copies under the copyright law exemptions for students who are physically unable to use standard print, the copies can only be used for qualifying students—those whose handicap meets the requirements of the law. The law also requires that each copy you make have a notice that any further reproduction or distribution in a format other than a specialized format for those with disabilities is an infringement, and you must include the original copyright notice in the copy.

APPLYING COPYRIGHT TO “EDUCATIONAL PURPOSES”

Q: Recently a senior informed me that she had been told by our PR director that using any music in her senior project documentary film would be fine because it was a student project. She intends to post her finished documentary online. I followed up with the PR director, saying that I had been taught otherwise. The PR director said her intern and the fresh out of college recruitment director had both been told by their college professors that music copyright wasn’t an issue in anything made for “educational purposes.” Have I missed the memo? Should I be telling our students this? It seems from my own research that things have not changed. What am I missing?

A: It is very true that student use for the student’s own education is generally viewed favorably in a fair use analysis. Nevertheless, just because someone is a student doesn’t mean everything he does is for “educational purposes.” In the situation you have described, the student’s use of some music for her senior project is likely fair. The multimedia guidelines set some limits (though not totally inflexible limits) on what students and teachers can consider to be “fair” within an educational multimedia project. While not law, the guidelines were developed through a Congressionally endorsed process and may be relied on and used to support a claim of fair use. The guidelines suggest that 30 seconds or 10 percent (whichever is less) may be considered “fair” for educational projects. But if some additional time is required to make a specific point or used for the purpose of commentary the student could justify an expansion of the time limit suggestion. What is probably not fair is using an entire musical work simply for the purpose of “decoration” (i.e., background music) for the project. Also, the multimedia guidelines suggest what uses of a project might be fair. For uses that include non-secure networks (“secure” means each user must log in with an individual password to see the project, and the project is protected from copying), the student may only post the project for fifteen days following its use in the course (or following the submission for a senior project).

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.