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Fair Use Scenario: Gloria's audio recordings

In a continuing series of scenarios that explore educational fair use issues.

T-L Gloria has been given a technology grant by her school district. With this grant she purchased mp3 players for two groups of at-risk students. She identified a group of low level books and purchased Accelerated Reader's audio assistance for the identified books. She attempted to find these books as commercial audio books, but only found a few titles. The rest of books she plans to make MP3 versions of (with "Text to Speech") so that they can be loaded onto the players along with those purchased commercially.

She grouped the books by publisher and has contacted each publisher to get permission to make the MP3 versions, but has been met with some discouragement by supervisors in her district because they think that making the MP3 version is breaking copyright. Gloria wants to get publisher permission but it will take some time. She plans to start making the recordings before she hears back from some of the publishers.

  1. What is the copyrighted material? Who owns it?
  2. Does the use of the work fall under fair use guidelines? Is the use transformational in nature? Can this be considered "educational" use?
  3. What is your level of comfort with Gloria's actions, assuming she destroys any recordings from publishers who do not grant permission. Are there any changes or limits you might like to see that would make you more comfortable?

Your level of comfort with this use of copyrighted materials: High 5 4 3 2 1 Low

You comments are most welcome.

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Reader Comments (9)

I'm interested in this scenario because it brings to mind a conversation I had recently with a special ed teacher about providing audiobooks for students with IEPs. Her take on federal law for students with disabilities is basically that copyright restrictions don't apply, that a student's IEP 'trumps' copyright law. Is this an accurate interpretation of federal laws? Would Gloria, in your scenario, be within the law if she's providing audio for students with IEPs?

April 27, 2009 | Unregistered CommenterSuzanne Hamilton

In this kind of case it is important to consider whether or not the use competes with a product offered by the copyright holder (or their licensees, etc). That is, if there is no commercially available audio version, you are not affecting any potential sale, and more should be allowed under fair use.

Regarding Gloria's question, I would think the IEP is irrelevant.

April 27, 2009 | Unregistered CommenterTom Hoffman

I agree, IEPs do not trump copyright.

My comfort level is about a 3 with this. I think "fair use" would cover the homemade MP3s while contacting the publisher. If I was in charge of copyright compliance I'd want a copy of the letter from said publisher no matter what the company's decision.

April 27, 2009 | Unregistered CommenterNathan

I think I have some mixed levels of agreement with posts.

IEP's and students with disabilities. I am hard pressed to find the original source, but I could swear that I had read something about modifying the media used for students with disabilities. It was my impression (and maybe wrongfully so) that it would not violate copyright to move a written work into audio to accommodate a visual impairment in schools.

While commercial impact is one component of determining fair use, so is brevity. Making a complete copy of the work and simply moving it to new media is still making a copy of the entire work. To me, this would tip the scale out of fair use. While permission was sought, it was not granted (does merely asking constitute a waiver for permission?). This would also tip the scales out of favor of fair use.

What would weigh in favor would be the nature of the use - for purely educational reasons.

Spontaneity seems to be present in the hurried manner in which the teacher wants to start with the project. However, that urgency is not related to the timeliness of the material, but rather an issue of planning. While fair use has a consideration for spontaneity, I believe it is related more towards the timeliness of the actual content being used (ie newspaper articles about a topic happening right now).

My guess is too much weighs against the use in this situation to be able to call it fair use.

April 28, 2009 | Unregistered CommenterJoel VerDuin

Students with disabilities: While not part of the original question (at-risk is not, to my knowledge, recognized under IDEA), someone had posted a question about students with disabilities.

I am confusing National Instructional Materials Accessibility Standard (NIMAS) in the issue in my post above. It is a series of recommendations and technical standards that is somewhat related to the original question, but not to the extent that I thought it was in my post above. It is not relevant here.


April 28, 2009 | Unregistered CommenterJoel VerDuin

Great scenario, it brings to mind the recent Kindle 2 audio controversy. I wish Amazon hadn't caved to publisher pressures on the issue.

You need to run your situation through the four parts of Fair Use to determine if it violates copyright. In addition, The Code of Best Practice raises additional protections for copyrighted materials that are "repurposed" or "transformed."

1. Purpose and character of the use (non-profit education versus commercial use): Proposed use is nonprofit educational use, this factor is in favor.

2. Nature of the material being used (factual or fictional in nature, degree of creativity): The works are, most likely, published works of fiction, so considered more creative than non-fiction materials, and subject to greater copyright protection. This factor is not in favor of the proposed use. Gloria might select some high interest non-fiction resources to include to help shade this factor in her favor.

3. Amount and substantiality of the portion used in relation to the whole: Entire book is being scanned and converted to digital audio, not just select portions; this goes against fair-use. Could shorter selections be scanned and converted for use? Does it have to be the entire book, or could it be just enough to hook kids in, and encourage them to read the print text itself?

and 4. the effect of the use upon the potential market for or value of the copyrighted work: Commercial audio books for these titles are not currently available; at this point in time, there is no negative effect on the original material. This weighs in on the side of Fair Use.

So, the Fair Use Factors are pretty evenly split...

Repurposed/Transformative? The original purpose of the material was to entertain readers. If Gloria's purpose is just to "hook" at risk kids on a cool technology, or to entertain them with a book, then the proposed use doesn't meet the standard of transformativeness. But if Gloria plans to use the MP3s to teach explicit literacy skills? That just may be transformative in nature. The new Code of Best Practices in Fair Use for Media Literacy Education really changes how we look at copyright. We need to remember that copyright in the U.S. Constitution was intended to promote innovation, creativity and the spread of knowledge, not suppress it.

Your questions

1. What is the copyrighted material? Who owns it? The copyright material are the books themselves, and any derivative reproductions, specifically including phonorecords. A digital file of the book is clearly covered by copyright, but the doctrine of Fair Use can still allow use for teaching purposes (Section 107).

2. Does the use of the work fall under fair use guidelines? Is the use transformational in nature? Can this be considered "educational" use? Depends upon the particulars and the context of the situation...I'd want to be able to talk through the proposed use with Gloria, and help coach ways to ensure use is fair.

3. What is your level of comfort with Gloria's actions, assuming she destroys any recordings from publishers who do not grant permission. Are there any changes or limits you might like to see that would make you more comfortable?
If the work is considered transformative, Gloria does not need to receive permission from the publishers, or destroy MP3s for titles where the publisher does not grant permission. Her obligation is to prove she made a reasonable attempt to justify her use as Fair Use. Working through a consideration checklist like this one, created by Indiana University,, and consulting with a copyright coach (another TL colleague?) would go a long way to demonstrating her "reasonable attempt."

My level of comfort with this use of copyrighted materials, assuming the best of intentions for direct teaching with the materials? 5. I'm feeling pretty out on a limb here, but that's my 2 cents!

April 28, 2009 | Unregistered CommenterShannon

Gloria might also speak to her special ed teachers to see if any of these at risk students qualify for Bookshare™: Bookshare provides digital audio (TTS) accessible books and periodicals for Readers with Print Disabilities (Free for all U.S. students with qualifying disabilities).

Another thought? Gloria might create her own AR tests for books available that are available for purchase or through her audiobook subscriptions. The difference between a recorded audio book and TTS is still pretty huge.

April 28, 2009 | Unregistered CommenterShannon

I am not sure about he answer to the questions, but I am wondering if the publishers would be willing if it is for an educational purpose and not for resale. Low readers really need the opportunity to listen to good readers read. This is also a excellent way to incorporate technology into the classroom and provide individual instruction. Students are always looking for a chance to listen to to their ipods or mp3 players. The other students would not have to know what the peers are listening to. I would probably go ahead and download the stories on the mp3 players while I waited to hear from the publishers. Then if I did not get permission then I would delete it off the players.

April 29, 2009 | Unregistered CommenterKirsten Kelly

Hi Suzanne,

My understanding is that copyright applies even to those students with IEPs (or at least I can't find any information about this.) There are special provisions for the blind (See


Thanks, Tom. I would agree.


Thanks, Nathan. I appreciate the input!


Hi Joel,

I believe the kind of reasoning you evidence is exactly what each of us need to do when presented with evaluating whether something is fair-use. I keep thinking about it being "a personal level of comfort" rather than a set law...


Hi Shannon,

Like Joel, you give a great example of thinking through this scenario using certain criteria. I would only add that the law says each of the four use criteria has to be considered, NOT that they have to be met.


Hi Kirsten,

I would like to think publishers would be willing to permit this use - provided they do not sell a similar product commercially.

Too often the issue is that the publisher says no, but that it simply doesn't respond. For me, that's why I feel comfortable in asking forgiveness as I do permission in a scenario like this. But that is me!


April 30, 2009 | Unregistered CommenterDoug Johnson

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