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hey, I have a fair use question! Could you walk me through the 4 point test/ramifications?

The situation: I'm a school librarian. I want to read a book outloud and podcast it--to supplement my students' summer reading.
So, 1.--nature is non-commercial & educaitonal. 2.--"nature of the copyrighted work" (?)(children's book copyright by major publisher) 3.--the quantity/amount of the original work would be all of the text. 4.--effect on market? zero. although in paranoid-legal-land the publisher might argue against that.... but seriously, a school librarian undramatically reading a book...to a theoretical audience of millions but a real audience of maybe 20...If anything, I'd imagine the effect on market would be a bit good, as seeing the cover of a good book along with hearing a bit of it, is publicity, and likely a few people will buy the book.

So help me with #2 (what is the nature? how is this measured?) and #4 (does one have to consider the theoretical effect or the realisitc effect?)

And then, if you can, tell me the implications for my situation?
I'd love your opinion.

PS--If the above situation is not fair use protected, would it be any different if one or two chapters were posted at a time, and then removed? (which would, maybe?, change the #3 amount of original work? and would change the audience size [making the chapters finitely available?]) ...?

Hi Rebecca,

The Copyright Advisory Network, an effort started out of the ALA Washington Office, Office for Information Technology Policy is a great place to ask that question.

Carrie Russell (author of Complete Copyright and a team of people trained on copyright in libraries will help you focus in on the portion of the fair use doctrine that might apply to your situation.

thanks!

Hello Rebecca:

I am going to write you a long answer that must begin with: this response is not legal advice, nor is it ALA's take on the matter. It is my informed opinion.

You are right about factor one - non-profit and educational uses are favored "fair uses."

Factor two has to do with the type of work you want to use and whether that work is published or not. Works that are "creative" under this factor- motion pictures, poetry, screenplays, music, novels-
tend to be protected more than works that are based on fact. A scholarly journal article is less creative than a poem. A newspaper article is less creative than a comic strip. I'm guessing that the work in question is fiction so it is in that category of "more creative." (We could probably go back and look at where this distinction came from over the years -- my guess is that factual materials advance knowledge (the purpose of the law) and fictional materials are more in the "enrichment" category - still critical to intellectual development but not as directly. Also a lot of the creative type works are works that are more expensive to create, sometimes involving more than one creator. Sometimes these works also have economic currency - a recently released motion picture is still in the "marketplace" racking up profits.

The second element of factor 2 is the published/unpublished status. If a work is published, it has already made it to the marketplace. If a work is unpublished, it's profit making life has not started so to use an unpublished work is always more on the risky side. In this case, your work is published. This aspect of factor 2 looks then fair, but overridden by the "creative" determination.

Amount - yes, you want to use all of it. Not fair.

Effect on the market for the work - yes, by making a podcast you probably are not having a negative effect on sales for the work, but the rights holder's ability to make more money in this secondary market (audio books) could be negatively impacted. And we know that more and more books do have an audio revenue generating life.

Balancing all of these factors seems to indicate that your use is not fair.

Is there some way you could achieve your goal in a way that would be more fair?

You could limit access to the podcast to only students in the school grade you are trying to reach. For example, you could make a podcast and put it on a secure server, that only eligible students could access by password. You could make a podcast and put it on an iPod, and loan the iPod to eligible students. You could make the students go to a listening lab to hear the book read aloud (not a desirable option I'm sure). There is no reason that you need to put the podcast on a publicly accessible web site. By doing so, the use becomes less education oriented, messing with the only factor you have going for you - #1.
You could also make accessible only one chapter at a time, then delete that chapter when the students have had the time to listen to it.

Basically,you can make the use more fair by limiting access to the entire thing and restricting access to only eligible students.

If you did both of those things, you enhance factor 1 and take care of factor 3. Also no one outside of the class has access so the potential buying audience for the rights holders' version (when and if it comes out) is not affected (good for factor 4).

If you do these things, an argument for fair use is pretty good in my opinion, but do know that a rights holder is the party who initiates an infringement suit, and the rights holder may feel otherwise. Rights holders have sued for lesser infractions.

The possibility that you would be sued is low, but never say never. A worse case scenario might be getting a cease and desist letter. Taking a school librarian to court is not a popular thing to do. One could argue that you had every reason to believe your use was fair (you considered the four factors, right?)and the court might remit any statutory damages (this is in the law at 504(c)(2)).

There is also the 11th amendment. If your school is public and is funded by your state, the 11th amendment may (no one knows for sure because this has not been tested as far as I know in regards to copyright law) prevent the federal government from suing your state.

Hope this helps. I'm sure you will also get a response from your posting on the Copyright Advisory Network.
-carrie russell

Rebecca -- a great, real world query.

Aaron -- thanks for responding; very helpful!

Carrie -- fabulous answer; we owe you one!

Oh, and some additional links for Complete copyright: an everyday guide for librarians:
ALA store
WorldCat
Google Books (with preview)

[this was terrifically helful--thanks. Also, the forum reply was great.]