As CORVID-19 closes schools and sequesters adults and children alike in their homes, fair use is starting to take on much greater significance in allowing libraries and performers to provide online services to children.
The School Library Journal covers a statement released by a number of education and public librarians, contending that this kind of crisis is just what fair use was made for: “While legal obligations do not automatically dissolve in the face of a public health crisis, U.S. copyright law is, thankfully, well equipped to provide the flexibility necessary for the vast majority of remote learning needed at this time.”
The statement examines potential fair uses, such as reading stories in Internet or broadcast video, or making copyrighted materials available for online student use, in light of the four-factor fair use test now used by courts, as well as offering advice on mitigating against risks of lawsuits by limiting access to students and others with the particular need for the material.
This is not the only article suggesting that online storytime would be considered fair use. Programming Librarian discusses the matter in an interview with Carrie Russell, copyright specialist in ALA’s Public Policy and Advocacy Office. Russell explains:
A critical thing to know about fair use is that it is, by design, flexible, so it can accommodate a wide variety of circumstances. The courts have not taken up cases that address the use of copyrighted works to minimize a public health crisis. But we can answer that question by again looking at the four factors of fair use — in particular, the first factor of purpose.
In our current situation, the public can’t access library materials because of widespread library closures. Social distancing is keeping students out of classrooms, so all learning is taking place online. Parents and caregivers are doing more educating in the home.
More than ever, sharing story times digitally benefits society, so it falls squarely within fair use. As April Hathcock, director of scholarly communications and information policy at New York University, said, “fair use is made for just these kinds of contingencies.”
And publishers are taking notice. Publishers Weekly reports that some children’s publishers such as Simon & Schuster and HarperCollins are updating their fair use policies for the duration of the crisis. They will explicitly be allowing a broader range of fair uses for its materials in online readings, as long as full attribution is given for the material and the recordings are taken down after a time. (Of course, the publisher is not the final arbiter of what fair use is—but this is just a way for publishers to say explicitly, “we won’t sue you if you do this,” in much the same way a Creative Commons license does. That lets people do more without the risk of running legal expenses defending their fair use.)
And individual authors are doing the same thing. When Reading Rainbow host LeVar Burton was looking for children’s stories he could read aloud on his podcast, Neil Gaiman stepped up to give him blanket permission to use any of his material. (Burton had already read the Gaiman short story “Chivalry” on the podcast in 2017.)
Some materials don’t need fair use permission to reuse. Sir Patrick Stewart has begun streaming himself reading a public-domain Shakespearian sonnet every day to give people hope in quarantine, and Dame Helen Mirren has read a sonnet, too. And “Weird Al” Yankovic has posted a solo accordion cover of one of my favorite songs, the Mason Williams instrumental “Classical Gas”. It’s great how so many performers are stepping forward to shed a little light in these dark times.
Will any of these expansions to fair use stick around after the quarantines are over? Probably not, given that it takes extraordinary circumstances such as epidemic quarantines to pry such concessions out of publishers who have historically been horrified any time some outside entity tried to encroach upon their prerogatives (Google with its book-indexing scanning, or Amazon with its $9.99 pricing). But on the other hand, the sale-or-return mechanism for bookstores has long outlived the original Great Depression during which it began, so who knows?
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