The Pandemic’s Read-Aloud Initiatives Spark Copyright Fair Use Tussle - OZY | A Modern Media Company

WHY YOU SHOULD CARE

There’s a thin line between ethical and legal.

By Joshua Eferighe

  • From celebrities and school teachers to the U.N., school closures amid the pandemic have led to a wave of virtual real-aloud initiatives.
  • Many publishers and authors are concerned that these efforts could lead to copyright violations.
  • But more than 150 copyright experts and librarians have argued that read-aloud initiatives in these times constitute “fair use.”

Four weeks into the region’s lockdown, a preschool teacher in Northern Italy was running out of books to record on her phone and send out to her kindergarteners’ families.

Luckily, she was in contact over WhatsApp with Lisa Von Drasek, curator of the Children’s Literature Research Collection at the University of Minnesota, about her challenge. Drasek sprung into action. “I thought I would reach out to children’s books creators who donate to our collection,” Drasek tells me. She wanted them to send footage reading slowly from their books, for overseas teachers to translate. But while she was hatching the plan, a publishing house reached out, expressing copyright concerns.

It’s a challenge authors, publishers and educators are grappling with as they come up with clever ways to reach the more than 2 million U.S. students currently not in school. In mid-March, actors Amy Adams and Jennifer Garner introduced the Instagram account @savewithstories — a program where children who aren’t able to attend school in person can listen to and watch celebrities read books.

Stimola Literary Studio, a literary agency that represents authors and illustrators, is hosting live-streamed read-aloud, craft activities and drawing demonstrations in partnership with kid lit and young adult authors. Jarrett J. Krosoczka, creator of the graphic novel Hey, Kiddo, is hosting free webcasts for kids on YouTube every day.

The problem? These public initiatives could inspire regular teachers and others to also dive into read-aloud projects. And without the express approval of the copyright holder, such initiatives could be illegal. Federal law forbids public posting of recordings of published work online, which is considered a “public performance” — an exclusive right of the copyright holder. That limitation is now sparking a fresh debate on whether the law needs a change or reinterpretation for times of public health crises.

There are people out there who are thieves and they don’t care about kids and they don’t care about ethics.

Rosemary Wells, author, illustrator and a founder of #OperationReadAloud.

Drasek connected with Rosemary Wells, author and illustrator of several best-selling children’s books. Wells in turn reached out to more than 30 publishers, editors, and children’s book creators and within four days formulated a permissions plan for teachers, librarians and authors to read books aloud. In mid-March, #OperationReadAloud was formed.

“It really was a coming together of the community,” Drasek tells me. 

Securing the permission of copyright holders meant that Wells and Drasek don’t have to worry about the law. UNICEF has a similar #ReadtheWorld initiative with the International Publishers Association, where popular children’s authors are reading extracts of their books on Instagram to millions of kids at home during the pandemic.

Wells shares concerns that without checks and balances, read alouds can breed copyright infringement. “It’s all very fine to be ethical and to get the books to kids, but there are people out there who are thieves and they don’t care about kids and they don’t care about ethics,” she says.

Not everyone agrees. Ultimately, the test of fair use that courts deploy is whether public interest overrides the economic interest of the rights holder.

Nancy Sims, an attorney and the copyright program librarian at the University of Minnesota, says she has a “friendly difference of opinion” with Wells and Drasek. 

She is among more than 150 librarians and copyright specialists who have signed a public statement arguing that read aloud initiatives during the pandemic are covered by fair use. “While there are no fair use cases squarely addressing copying to help minimize a public health crisis, the other wide variety of public benefits cited by courts leads us to believe that this purpose would weigh extremely heavily in favor of fair use,” they’ve said.

No matter how you interpret the law, schools are unlikely to open anytime soon, as effects of the pandemic that has killed more than 105,000 Americans continue to linger. And both Sims, who points out ambiguities in the law, and Wells, who believes it is sacrosanct, agree that something has to change. “It’s not right to break the law, it is right to change the law,” Wells says.

Sims believes America needs a mechanism that empowers teachers to make the judgment call on fair use — especially in these times. She cites a driving analogy: On the highway, it’s illegal to breach the speed limit, but it can also be dangerous for other divers if some cars are moving too slowly. “You make those judgement calls,” she says.

Just how much leeway is extended to online readers — whether teachers or public personalities like Adams and Garner — could shape the future of fair use considerations, at least with kids’ books.

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