What is the law regarding this school situation?

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  • A teacher has received 8 iPod nanos from a district instructional grant
    entitled 'iListen & iLearn'. Here are her exact words on her handout to other
    teachers at a staff meeting. Her plan is to use


    these iPods to build a digital library of the books we use the most in
    our classrooms (either as read alouds or for guided reading
    instruction). This collection will be leveled and organized on playlists in iTunes
    and then downloaded onto each of the iPods for students to listen to
    as they read along with the actual book in your classroom. (BASICALLY,

    In order to make this program a success I need some help from the

    - First, so that this can be of the most use to you and your classroom
    I need suggestions of literature you would like to see become a part of
    our digital library (i.e. favorite read alouds and guided reading
    _ Upper grads, please DON'T shy away from chapter books, we can
    divide the
    books by chapter!

    - Second, I would like many of the recordings to be done by the adults
    the students are familiar with (i.e. school staff, community helpers,
    and parent volunteers). Volunteers would work with me to create audio
    files of books onto a computer by reading aloud into a set up microphone.
    Hearing their teacher or another admired adult in the school familiar
    to them can be a huge motivation to the students making this program
    even more of a success!

    end quote

    At this meeting I raised my hand and questioned whether she did the
    research about copyright law, because her plan is illegal. Evidently, she
    did not, and I became the enemy of the entire school, just by doing my job.

    Please send me the exact wording of the law regarding this "School
    Board Approved" Idea. Your prompt response would be very helpful with my
    job security.

  • I think that the issue here may be a bit murky. Under certain circumstances, the recordings may be legal, but I do think that the situation requires some care make sure that the school's practice doesn't become infringing. There have been some other posts on similar topics which may be useful. You might try searching the forum. I tried separate searches for "books on tape" and "audiobooks" and each came up with some that may help.

    It is possible that recording some titles might fall under fair use. I think it would be very important to be clear who has access to the iPods and what they have access to it for. Would it just be available to members of a specific class or group of classes? Would they be listening for that class, for general learning, or for pleasure?

    Once you have that figured out, someone would need to do a fair use analysis for each recording. The form linked from our home page may be useful for this. Since the project includes recordings of entire works, I think that this analysis will hinge on how educational the use is AND whether or not the books are available for purchase in audio format.

    My own personal take would be that it would probably be ok as long as a serious attempt is made to find the titles for purchase in audio format and only titles that aren't available for purchase are recorded. This argument would be strengthened the more educational the use was and the more educational the books recorded were. However, fair use is rarely straightforward, so an important part of the analysis is how willing the school and the recorders are to take any risk.

    It's not clear to me whether or not the TEACH Act might apply in this case. Perhaps someone else could jump in about that.
  • In my opinion, this would not be fair use, and the school needs to get permission before reproducing entire books in audio format.

    Under the first criterion of fair use, Purpose and Character, it could be argued that the purpose is "educational." But, because multiple audio copies are being created for use semester after semester (and not even necessarily for a specific class), I don't think that you could successfully argue "spontaneity" for character of use. Therefore, less likely to be fair use.

    Under the second criterion, Nature of the work, it sounds like these works would be more creative than factual, so less likely to be fair use.

    Under the third criterion, Amount and substantiality, it sounds like they're planning to reproduce entire books, so unlikely to be fair use.

    Under the fourth criterion, Effect on the market, audiobooks are a booming market (both audiobooks on CD /tape and e-audiobooks). If the book has already been recorded as an audiobook and is available for sale, then I think there is no fair use. Even if the book is not currently available in audio, the publisher could be planning to produce in audio and there would be an effect on the market. Reading these four criteria together, I believe this project would not fall under fair use.

    Before the school puts the time and resources into recording these books, I would suggest that they either purchase existing audio copies of these books through legitimate sources or, if no audio copy is available, they obtain permission from the copyright owners. My guess is that, in many cases, it would be likely that the copyright owners would grant permission. [Note: some publishers sign exclusive audio-recording contracts, however, and might not be able to grant additional permissions to record.]
  • I tend to agree that this is a bit over the top. My assumption is that many of the titles the teachers wish to use are available in the audio book format in the marketplace. If you make your own copy, you are avoiding a sale - but then you make more copies of the unlawful copy made.

    Another worry: if you buy audio books from iTunes, you are bound by the license agreement that was accepted in order to use iTunes. In the fine print, you will find that the files downloaded can only be used for non-commercial, personal use.

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