Last updated 30 March 2020
I first saw someone on Facebook propose a concept. A day or so later, I read a tweet from another person writing about the same thing. Suddenly, it seemed that this idea started spreading exponentially. I began to worry about narrator friends who were unnecessarily exposing themselves to risk.
You see, due to the closures and social distancing measures prompted by the COVID-19 pandemic, many audiobook narrators, teachers, and parents have announced plans to record books on YouTube to educate and entertain children or even the public at large. They don’t realize they could be liable for copyright infringement.
Before I finished grad school with my Master of Science in computer information systems, I considered switching to law school to specialize in intellectual property law. I therefore was beyond excited to be accepted in the 2020 CopyrightX course offered by Harvard Law School.
I’ve learned so much in this course and look forward to my successful conclusion of it in early May.
While I’m not a copyright expert, I want to share some information to help these well-intentioned people better understand the laws so that they can avoid the possibility of copyright infringement during the pandemic and thereafter.
First, you should know that the copyright owner has exclusive rights in 4 areas:
- The right to reproduce their work as a copy
- The right to create or approve derivative works based on the copyrighted work
- The right to control distribution of the work
- The right to control public performances or displays of the work
Audiobooks are a derivative work. Audiobook publishers and producers pay the copyright owner to license the rights to produce and distribute a sound recording of the book’s text for a specified period of time.
Those who have not licensed the book but record it anyway are infringing on the copyright.
Those who simply perform the book live on YouTube, Instagram, or elsewhere but haven’t licensed the rights to create and distribute a derivative work or publicly perform it are infringing on the copyright.
Exemptions in the law permitting certain performances and displays of the work are listed here. Item 4 states a public performance doesn’t infringe if it:
- isn’t in a transmission to the public
- has no direct or indirect purpose of commercial advantage
- has no direct or indirect admission fee, or proceeds from any fee are used for educational, religious or charitable purposes and not for financial gain
This exemption seems meant to cover story times at libraries. It still wouldn’t allow someone to transmit the story over the internet. It could be argued that a narrator performing stories over YouTube hopes to have indirect commercial advantage.
You could think that the copyright holder “probably won’t mind” if you read their book aloud on a public YouTube channel. Some people might rationalize this argument something like this: “We’re in the middle of a global pandemic. Think of the children!”
I contend the copyright holders probably WILL mind a great deal. If they allow the infringement for this situation, they’re effectively telling a court that they don’t value the protection of their creative work. If they do nothing now but later sue someone for a different infringement, I think their argument is weakened after taking no action today.
One defense often used in copyright infringement cases is Fair Use. This standard allows people to use copyrighted materials for certain purposes such as news reporting and criticism. However, this defense is a subjective, slippery slope because courts weigh 4 factors, quoted from the US Copyright Office:
- The purpose and character of your use
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- Effect of the use upon the potential market for or value of the copyrighted work
In general, courts seem more tolerant of an infringement for a non-profit educational effort. However, Fair Use most likely would not be a winning argument for the type of project where people perform the complete copyrighted book over the internet to a potentially unlimited audience. This paper written by a number of copyright experts notes that many practices by teachers could be considered Fair Use. Audiobook narrators are not classroom teachers, though, making our usage more problematic.
Audible Captions Case
Although the situation is different and involves a commercial enterprise, the recent Audible Captions case demonstrates these principles.
Audible announced in the summer of 2019 that listeners could generate “captions” in the Audible app while listening to an audiobook. Artificial intelligence created a transcription from the audio that produced the text from the book. Audible explained that users would be able to see a definition for a word, look up Wikipedia entries, or translate it to another language.
Audible had a license only to distribute the audiobooks.
Audible had not licensed the rights to reproduce and distribute the actual text from the book. The big 5 publishers plus Chronicle and Scholastic immediately filed suit for copyright infringement. The publishers firmly stated in their complaint that Audible was “taking copyrighted works and repurposing them for its own benefit without permission” and ‘unlawfully creating derivative works of, reproducing, distributing, and publicly displaying unauthorized copies of the Works.”
In its reply to the publishers, Audible noted that it was guided by “a desire to promote learning and listener engagement.” The document discusses Audible’s plan to provide 150,000 students and teachers with free Audible accounts with access to a small, curated library. They would continue to pay royalties on the audiobooks in the program, and users would have to opt-in to get the captions on a particular book. Audible cited numerous cases in efforts to support their position that they could display the text.
Audible also claimed a Fair Use defense since the Captions would help listeners better understand the material. Again, they cited numerous cases and listed examples of “profound potential benefits for listeners of all ages and styles.”
The judge didn’t buy anything that Audible was selling. She issued an injunction stating Audible is “permanently restrained, enjoined, and prohibited from creating, generating, reproducing, modifying, distributing, publishing, or displaying, without express authorization from the owners or exclusive licensees of the United States digital text rights, written text derived from the audiobook versions of Publishers’ Works for any product or service created or offered by Audible. This prohibition does not apply to any text in the public domain.” Audible and the publishers negotiated a settlement agreement in which Audible had to pay an unspecified amount to each of the 7 publishers who filed the complaint.
The Audible Captions case clearly shows that the purpose, intention and circumstances behind copyright infringement don’t excuse its illegality. Copyright owners fiercely protect their work, and the law is on their side.
Internet Archive Emergency Library
Remember when I wrote above that copyright holders probably would oppose infringements even in a pandemic? The Association of American Publishers (AAP) has already proven my point.
On 24 March 2020, Internet Archive announced a National Emergency Library in which waitlists to over a million ebooks will be suspended until 30 June, or “the end of of the US national emergency, whichever is later.”
The Publishers Marketplace subscription Lunch Deluxe newsletter for 25 March reports that these ebooks are digitized versions of library books that are out of print or unavailable as ebooks. In 2011, Internet Archive and other libraries created a practice known as “controlled digital lending” to emulate services of a local library with print editions where only 1 person can borrow a copy at a time. Lunch Deluxe linked to this site that offers legal arguments for controlled digital lending being considered Fair Use.
While authors and publishers haven’t challenged the practice in court, the sudden switch to unrestricted, simultaneous lending may provoke a lawsuit. The newsletter disclosed that in a written statement the AAP called the Emergency Library an “aggressive, unlawful, and opportunistic attack on the rights of authors and publishers” and concluded that Internet Archive made “a cynical play to undermine copyright, and all the scientific, creative, and economic opportunity it supports.”
Mirroring the AAP’s position, the Authors Guild posted on 27 March that it “is appalled by the Internet Archive’s (IA) announcement” and that the “IA is using a global crisis to advance a copyright ideology that violates current federal law and hurts most authors.”
Now that you have some background, let’s look at the options open to those who want to do online readings.
Books Still Under Copyright
This Cornell University chart shows the copyright terms and dates works enter the public domain within the US. The terms and dates are different in other countries. If the book is still protected by copyright, determine if the publisher has already granted permission for this type of usage. You may need to contact the publisher.
- The American Association of Publishers created a comprehensive COVID-19 Resource Page of industry info and programs.
- HarperCollins Children’s Books shared its guidelines that apply through the end of the school year.
- Little, Brown Young Readers, an imprint of Hachette, permits this type of usage as long as you meet the requirements.
- Penguin Random House has created an Open License to cover the US this situation. This license requires an unlisted YouTube channel and reporting about usage.
- Scholastic posted a letter permitting readings as long as they are deleted no later than 30 June 2020.
- Simon & Schuster has published guidelines for online book readings that expire 30 June 2020.
- Sourcebooks lists their policy and reporting requirements that expire 30 June 2020.
I tweeted to Hachette, HarperCollins, Macmillan, and Simon & Schuster to ask if they have created a license similar to Penguin Random House. I’ll update this page as I learn more information.
A book falls into the public domain when the copyright has expired. Works in the public domain belong to all of us and can be used for any purpose including public performance without any reporting requirements or royalty payments owed to anyone.
In the US, any book published in or before 1924 is in the public domain. Each 1 January, the next year’s books will join the public domain. For instance, on 1/1/2021, books published in 1925 become public domain material.
Books published between 1925 and 1963 require research to determine their copyright status. Books published from 1964 to present are almost assuredly still under copyright.
Some wonderful Public Domain books for children can be found at these sites:
- The Public Domain Sherpa site lists over a dozen sites, including this collection of “Literature for Children”
- Baldwin Library of Historical Children’s Literature at the University of Florida
Some authors decide they want to give up some or all of their copyright protection and have adopted a Creative Commons license for it. This organization offers 6 licensing options that give people permission to do certain things with the original work. All Creative Commons licenses require attribution, and some do have restrictions. If you’re planning an online performance, you need to be careful to choose a work that allows you to “remix” and “redistribute”.
In searching for texts with Creative Commons licenses, I mostly found sites offering only images. Authors may not know about this kind of license or may be opposed to using it. However, I discovered you can find some children’s books published with Creative Commons licenses such as these example sites:
Of course, if you write your own story, you are free to read it online and/or record it because you own the copyright.
In writing this article, I don’t mean to extinguish the burning flames of anyone’s desire to assist others. I’m simply doing my part — from a distance! — to help people stay safe in these difficult times.