Fair Use

Thank you for your kind words. We’re going to address this question in three chunks:

• Displaying Student Work (putting the work in hallways);
• Using Student Work (in “promotional materials, social media postings, BOCES and Component District publications, general communication, curriculum writing, plus many other examples”); and
• Solutions (because that is what is requested).

Displaying Student Work

Just last week, I went to my 11-year-old daughter’s art show at her school, where two works (a collage and a self-portrait) were on display with the work of other students grades 5 through 8.

I watched as the students and their families looked over their work, praising, critiquing,[1] and learning together. The art teachers were there, smiling and commenting.

I knew from my daughter that the students had been working on their submissions all year and saw this show as the culmination of a long learning experience.

It sounds like the students referred to in this question are getting a similar benefit. The display is not mere decoration; it is part of an educational experience that teaches creation with an aim to display. I imagine that often, this connects to many learning outcomes in the curriculum.

When display of the work is part of the educational experience, no permission is needed to display the work, because subsection (1) of Section 110 of the Copyright Act allows it.

Section 110 of the Copyright is a broad collection of exceptions to copyright infringement, often in excess of what is allowed by Section 107 (“Fair use”). An excellent commentary on the rights created by 110 can be found here, in the “Notes” tab: https://www.law.cornell.edu/uscode/text/17/110.

For people who want extra credit, I encourage reading the full “Notes” at that link, but for the current question, what’s important is that 110 (1) says:

Notwithstanding the provisions of section 106, the following are not infringements of copyright:

(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction...

While generally this refers to the work of third parties (like reading a poem by Marquis Burton during a class on poetry), it does apply to student work if the culminating experience of the work being on display is part of the educational experience.

Of course, just because something is legal doesn’t mean it is appropriate; as the member’s question points out, the school wants to empower and respect the students, not outfox them on an obscure point of copyright law.

To ensure awareness and respect, schools use opt-in and opt-out forms, as mentioned in the question.

Which brings us to the next part of the question.

Using Student Work

Every single example here (promotional materials, social media postings, BOCES and Component District publications, general communication, curriculum writing) requires written permission of the author,[2] without exception, and when the author is a minor, permission of their parent or legal guardian.

This is where the “opt-in” form mentioned in the question is a great tool.

My favorite thing about this type of form is not that it is used as a mini-contract to get appropriate permission to use student work[3] but rather that it can be used to educate students on their rights as a creator and copyright owner, which brings us to...

Solutions

Below is sample language[4] for a form securing permission to use student work in various media and educating students and their families about their rights.

[Letterhead]

[Date]

Dear student and family:

Our [type] display of student work is approaching!

This form is for two things: display of student work at the show and use of student work in other places.

Please review it carefully and send it back in by DATE.

DISPLAY AT THE SHOW

As a student creator, a student owns the copyrights to their work. Just as important, both state and federal law protect student privacy.

Our [art show/course/class] will allow students to participate in the full experience of creating and displaying creative work.

Because students have the right to control their creative works and have a right to privacy, if a student wants to OPT OUT of the display of their work, they may do so. Otherwise, because this is an educational experience, the work will be displayed, and we will have a show on DATE. Students will not be penalized for choosing not to show their work.

To opt out of their work being displayed, the student can check the below section. It is not necessary to return a signed form in order to participate in the [show/display].

[  ] I OPT OUT of my work being displayed at the school. I understand I will not be penalized for this choice, and I know I can change my mind.

Signed by student: _______________________________

Acknowledged by parent:_______________________________

USE OF YOUR ARTWORK

Because your work is special, the school and our BOCES would like to be able to use it in promotional materials, social media postings, publications, general communications, curriculum writing, and in other places. We will credit you as the student artist!

If you consent to this use of your work, please sign the release below.

STUDENT: I consent to the use of my work in different places.

Signed by student: _______________________________

PARENT/GUARDIAN: On behalf of the student, I also consent to use of their work in different places by the school and BOCES.

Signed by parent:_____________________

To the student: please know that once you are 18 years old, you can revoke this permission at any time; just send the school a note, and if the image is still being used, we will stop using it from that point on.

Thank you!

Conclusion

I know that form is A LOT, but the good news is that if it isn’t returned, it simply means the student’s work is in the show, but they haven’t given permission for it to be used in any other ways.[5]

The experience of preparing creative work for display can be a key educational experience. Using those moments to educate students (and their families) about their rights can enhance their learning experience and empower them.

While copyright can be obscure,[6] experience shows that students who must contend with challenges in life—exceptional learning needs, behavior concerns, etc.—may end up being powerful generators of intellectual property. Students going into trades after career and technical education are very likely to become small business owners and will benefit from learning, early on, that they will own their business names,[7] any designs they might prepare for work,[8] and other work they author as they conduct their business. Early education on these concepts will help them for decades after.

Of course, the member who sent this is knows all this, which is why they asked such an important and thoughtful question.

Thank you!

This is a great question! I cannot wait to dive into the various sections of the Copyright Act that address this.

Before that, however, it is important to define the scope of what is being done (and what is NOT being done).

Of relevance:

• This is being done by an academic library;
• This is being done in a closed environment (not the open web);
• This is being done for access to materials in academic classes.

Also of relevance: the question is limited to published material that the institution does not subscribe to or own. We will assume that this “old” content is not so old as to be out of copyright.

I am sure there are many names in the archives/library biz for this type of asset (“old scanned article” being one of them). But for purposes of this answer, let’s call them Useful But Unacquired Proprietary Electronic Academic Artifacts, or UBUPEAA’s.[1]

And now it is time to dive.

There are not many ways an academic library can justify re-homing and providing a UBUPEAA[2] via a permalink in the library’s digital collections for purposes of classroom use.

Let’s talk about what doesn’t allow this:

Section 108 of the Copyright Act, which does allow libraries to make copies under certain circumstances, specifically doesn’t apply when the library “is aware… that it is engaging in the related or concerted reproduction or distribution of multiple copies… intended… for separate use by the individual members of a group.”[3] So, expressly creating the link for a class (“a group”) is not allowed by Section 108.

Section 107 (“fair use”), which allows anybody to make copies under certain circumstances, cannot reliably enable internal posting of UBUPEAA’s, because each article would have to be analyzed separately (and the analysis could change, based on a particular use).[4]

Section 110, sub-sections (1) and (2), could allow the URL if it is enabling the “performance or display” of the PDF during a synchronous or asynchronous teaching session,[5] but only to the extent that the materials are displayed and shared during the class (not for homework outside class time).

BUT!

Let’s go back to Section 108.

It is important to remember that the decision of the library to make one copy under Section 108 is different than a decision by an instructor or student regarding how to use the copy.

Under Section 108, an academic library can:

(a)… reproduce no more than one copy… if—

(1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;

(2) the collections of the library or archives are (i) open to the public… ; and

(3) the reproduction or distribution of the work includes a notice of copyright…

Although the law and the guidance on it largely pre-date scanning and the internet,[6] Section 108 does NOT state how this 108(a) “reproduction” must be made.

So, a regular practice of putting a UBUPEAA on its own URL as part of that academic library’s collection might—unless the library is doing so to gain a “commercial advantage”—be allowed, if the other requirements of Section 108 are followed.[7]

After that, “distribution” of the copy in the collection to others must fall into one of the uses allowed by Section 108.

In this case, after making the article part of the collection, Section 108(d) allows a user (not the library!) to make a copy if:

(1) the copy… becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research; and

(2) the library or archives displays prominently, at the place where orders are accepted, and includes on its order form, a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.

This approach turns on TWO VERY IMPORTANT things: 1) no awareness that the original PDF is creating a “commercial advantage” (like saving a licensing fee) and 2) no awareness by the library that there is a plan for “concerted reproduction” (like creating a course pack).

This is where defining the role of the academic library in creating the link is critical.

Unlike when assembling a course packet or ensuring articles available via subscription are accessible prior to listing them on the syllabus,[8] UBUPEAA should only be listed in the collection as available—not prepared for organized dissemination.

And now, I have to set out a very clear disclaimer.

This is NOT a work-around for making articles available without purchase or a license! Remember that the library must be confident that the PDF was not created in a way that creates a “commercial advantage”; if a copy or a subscription is available, this is NOT the solution!

How does this play out in the real world? If a library happens upon a scan of an article published in 2020 with a clear copyright notice published by a readily discernible source that will license it, further use of it will very likely create a “commercial advantage.” But, if a library happens upon a scan of an article it can’t locate via a subscription service, and the copyright owner cannot be discerned, the “108(a) and(d) solution” may be a good approach.

The other approach alluded to in the question—which is to make the copies available but ensure they are behind logins and thus not easily detectable by owners who might be trying to ferret out infringement—is not an allowable use but rather a type of risk management.[9]

For a state institution that is arguably newly immune from copyright liability,[10] this risk might be one the institution wants to take.[11]

For a private institution that is unquestionably subject to the jurisdiction of the federal courts for copyright infringement claims, this risk is much higher and should simply not be taken.

So where does this leave us?

The member asked: If we publicly offer to remediate (as best we can) published content that we do not subscribe to or own so that faculty can place an accessible version of them in their course shells, are we violating copyright?

The answer is “very likely yes.”

But if the question is:

If we publicly offer to remediate (as best we can) published content that we cannot otherwise subscribe to or own and place it in our collection, are we violating copyright?

The answer is, “with proper care, no.”

A heuristic for deciding to add UBUPEAA to a library’s collection would be:

1. Are we aware that or are there clear signs that the PDF was made/obtained illegally?
2. Is there a readily discernable copyright owner or licensing agent we can ask for permission to make/access the copy?
3. Is there an easily determined, reasonable cost to otherwise obtaining the content of the PDF?

If the answer to any of these questions is “yes,” the PDF might not just be UBUPEAA; it could also be an IFALS.[12] But if the answers document that there is no “commercial advantage” to using the PDF, making and hosting a copy as allowed by Section 108(a) and adding it to the collection, for use as any other library item under Section 108(d), is feasible.

Thank you for a great question!

Before we dive into this question, there are few fundamentals to review.

FIRST: Any institution publishing content like a student newspaper should have a “DMCA Agent” where notice of alleged infringement can be sent.[1] This allows a publisher of online content to enjoy “safe harbor” (meaning safety from certain claims of infringement).

If you would like to see if your institution has this, you can check it out at: https://www.copyright.gov/dmca-directory/

SECOND: Okay, that’s great, but of course, the publisher of a college/university student newspaper is usually the school, which is also the owner of the website. Can a publisher have “safe harbor” from itself? Not really, but the third party contracted to host the content can.

THIRD: While the “legacy media” landscape—including the horizon where student newspapers sit—is rapidly evolving, all student publications should still be teaching student journalists and editors how to used appropriately licensed images, or to document when an image is used under a claim of “Fair Use.”

The record of the license or the Fair Use analysis should be retained for at least seven years after publication.

Of course, none of that is helpful to the present situation, but it is important background context!

And with that, let’s answer the question: is it advisable to leave the collection in NYS Historic Newspapers and continue adding to it, or should we plan to take it down and only digitize future copies for in-house preservation purposes?

To answer this, the library (which is part of the college, too) can work with the advisor and student leaders of the paper to ensure the proper documentation regarding licensing and Fair Use is being generated and retained.

The goal of the collaboration should be to educate the student journalists about proper permissions and Fair Use as well as to ensure that the library can continue to properly archive the paper as it has done for almost a century.

This achieves two things: first, the students will learn about this evolving and ever-critical consideration in journalism and creative work. Second, it will position the college and any third-party provider to easily resolve (as in, tell to go away) copyright claimants in the future.

When the college knows that the licensing and Fair Use documentation is being routinely put in place, it can proceed with both the internal archiving and the external archiving.

This sounds a bit arduous, but it boils down to:

1. Set up a meeting with the student newspaper.
2. Discuss the importance of the archives.
3. Discuss how important licensing and fair use is for archiving and day-to-day operations of the paper.
4. Make sure the newspaper has and is following policies for Fair Use and licensing.
5. If you feel like going the extra mile, ask for how much insurance coverage there is for copyright infringement! The insurance policy’s requirements will support adherence to Fair Use and licensing policies.

If things can’t happen that way (because major meetings and policy development don’t always magically happen in a given semester), the fallback is the library’s selective redaction of the content online, with a note on how the content can be obtained in hard copy. “Due to a DMCA claim, this image is not available via our online archive. To obtain access to the originally published content, which has been retained by the publisher in hard copy to ensure archival integrity, contact EMAIL, and it will be evaluated under 17 U.S.C. 108.”

Thank you for a great question!

Before we jump into things, let me first offer this unambiguous assurance: Doubts, begone! The use you contemplated is allowed by law.

Okay, with that out of the way, let's break it down.

As we have reviewed on “Ask the Lawyer” before,[1] under Copyright Section 110.1, nonprofit education institutions can show physical copies of movies in class,[2] so long as the copy they are viewing was not “unlawfully obtained.”

Or, as the law puts it, it is not infringement for a school to engage in:

... performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;

When it comes to what constitutes knowledge of an “unlawful” copy, Congress commented on this in House Report 94-1476:

The exemption [from infringement] is lost where the copy being used for a classroom performance was “not lawfully made under this title” and the person responsible for the performance knew or had reason to suspect as much. This special exception to the exemption would not apply to performances from lawfully-made copies, even if the copies were acquired from someone who had stolen or converted them, or if the performances were in violation of an agreement. However, though the performance would be exempt under section 110(1) in such cases, the copyright owner might have a cause of action against the unauthorized distributor under section 106(3), or against the person responsible for the performance, for breach of contract.

Again: this means the in-class showing contemplated by the member can happen, so long as the school doesn't know the copy was unlawfully made (or didn't make the unlawful copy directly).

From the perspective of an author or owner of a work, this can be frustrating: it means that faculty at a college or university can show a movie, read a poem, or display a painting without the permission that, without the 110.1 exception,[3] might be required.[4] 

For purposes of this question, we're going to assume that the use proposed by the member checks ALL the 110.1 boxes:

• The use is for a not-for-profit educational institution;
• The use is by a faculty member or student; and
• The use will be confined to a class in which the students are enrolled (not a student club or an open event on campus).

It also sounds like the school is the owner of the actual physical copy, although that is not required to exercise rights under 110.1.[5]

So, with the member having met all the criteria for an in-class showing (or “performance”) to be held under 110.1, can a notice with a physical copy, saying essentially, “No 110.1 here, you must get permission to play this in class, or we'll sue!” remove the law's protection?

No.

If the law worked that way, every 110 protection from liability for infringement (which ranges from protections for education, to protections for people with disabilities) could be revoked ad hoc. The law might as well cease to exist. Happily, laws usually don't work that way.

Of course, before being able to give such a decisive answer, I checked the most recent case law and copy of the status on LEXIS-NEXIS. 17 U.S.C. 110 has not been amended since 2005. There has never been an opt-out provision that an owner can invoke with a notice on a physical copy. There is no case law that suggests such an opt-out exists.

Although I am able to give a decisive answer to the fact pattern, the member was right to take a pause and check in when they felt unsure. Copyright, especially in academia, can have some odd-twists and turns. But even though this notice tries to pull the rug out from under the feet of educators, 110.1 abides. [6]

The question is: what legal ways can I share these lectures with students?

The answers are:

1.  List the video series in the syllabus as a course material to acquire (I know...."BOOO").

2.  Work with the school's library to buy or license sufficient copies of the series for it to be generally accessible to the class through the library (I know... possibly also "BOOO", since the student has an extra step to access the content, but otherwise a decent option).

After these two, as they say: "I got nuthin'."

I cannot endorse the solution described in the question, since both creating a recording of the series and publishing it via Brightspace could create a possible claim of copyright infringement (even if the likelihood or discovery on a closed network was minimal).

I also cannot endorse playing the series during class, since the TEACH Act, which normally would allow watching a copyright-protected recording in class (either in person or via remote learning), does not apply to materials marketed as "mediated instructional activities" (such as a Great Course).[1]

I cannot even offer a "fair use" as a solution, since what you'd like to do does not meet the test for fair use, even though the purpose would be educational.[2]

This is an area where many instructors are going rogue, because the law does not offer a good solution (I am sure most readers have thought of a few not-so-good solutions by now).  But I cannot offer any guidance based on going rogue (well, not when it comes to copyright).

For more on the TEACH Act and fair use, see previous “Ask the Lawyer” answers including Streaming movies in school and the TEACH Act and Viewing DVD materials with remote-based students.

I hope your academic librarian can assist; this is an interesting challenge.

This question reflects the level of savvy "Ask the Lawyer" readers bring to their submissions.  The member submitting the question has already set out (in a manner much more succinct than I usually achieve) the interplay of:

• Owner's rights (Copyright Act Section 106),
• Adaptive copies made under "fair use" (Copyright Act Section 107), and
• Copies made for purposes of accommodations for disability that impacts the ability to read (Copyright Act Section 121).

I do have one quibble with the member's phrasing, though, and it is important to this particular issue: Section 121, while it allows copies otherwise barred, does not create a "fair use" right to make a copy.[1]  Rather, the creation of an adaptive copy under Section 121 is a 100% exception to infringement made under highly precise circumstances.

What are those "highly precise circumstances"?

First, as the member writes, the end-user of the copy must be "eligible"--meaning they have a disability that impacts the ability to read (for the three "ways" for a user to be "eligible", see sub-section (d)(3)(A)-(C) of the law, below). 

Second, the copies must:

"(A) not be reproduced or distributed in the United States in a format other than an accessible format exclusively for use by eligible persons;

(B) bear a notice that any further reproduction or distribution in a format other than an accessible format is an infringement; and

(C) include a copyright notice identifying the copyright owner and the date of the original publication."

And third, the maker of the copies must be an "authorized entity" (which is defined in the statute; see the definition, below[2]).

This precise formula, and the right it creates, is why "fair use" is not a part of the issue at hand (adaptive copies specifically for reading-based disabilities).  None of the above-listed requirements are required to claim "fair use" under Section 107[3]. In addition, to make a Section 121 copy, there is no four-factor "balancing" test; rather, a Section 121 use is "inherently noninfringing."[4]

The above-listed Section 121 requirements to include copyright notices are also the key to addressing the member's concern: enforcement.

When an "authorized entity" is creating Section 121-based copies for "eligible" people, the institution must put copyright notices on each copy. This sets up the institution--as either an employer or alma mater--to restrict non-eligible employees and students from using them for non-Section 121 purposes.  Further, in addition to the required notices, the institution can add additional warnings, and if needed, restrict use through technological controls.[5]

Now, how much should an institution police this?  Currently, there is no case law that turns on an alleged infringement that was committed via unauthorized use of a duly made Section 121 copy.  That said, content owners are always looking for new ways to maximize revenues, so taking care to properly designate Section 121-based copies as required by law, and using policy and posted notices to reinforce those restrictions, is a wise idea.

Thank you for a well-informed and nuanced question!

HERE IS SECTION 121 OF THE COPYRIGHT ACT:

(a) Notwithstanding the provisions of section 106, it is not an infringement of copyright for an authorized entity to reproduce or to distribute in the United States copies or phonorecords of a previously published literary work or of a previously published musical work that has been fixed in the form of text or notation if such copies or phonorecords are reproduced or distributed in accessible formats exclusively for use by eligible persons.

(b)

(1) Copies or phonorecords to which this section applies shall—

(A) not be reproduced or distributed in the United States in a format other than an accessible format exclusively for use by eligible persons;

(B) bear a notice that any further reproduction or distribution in a format other than an accessible format is an infringement; and

(C) include a copyright notice identifying the copyright owner and the date of the original publication.

(2) The provisions of this subsection shall not apply to standardized, secure, or norm-referenced tests and related testing material, or to computer programs, except the portions thereof that are in conventional human language (including descriptions of pictorial works) and displayed to users in the ordinary course of using the computer programs.

(c) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a publisher of print instructional materials for use in elementary or secondary schools to create and distribute to the National Instructional Materials Access Center copies of the electronic files described in sections 612(a)(23)(C), 613(a)(6), and section 674(e) of the Individuals with Disabilities Education Act that contain the contents of print instructional materials using the National Instructional Material Accessibility Standard (as defined in section 674(e)(3) of that Act), if—

(1) the inclusion of the contents of such print instructional materials is required by any State educational agency or local educational agency;

(2) the publisher had the right to publish such print instructional materials in print formats; and

(3) such copies are used solely for reproduction or distribution of the contents of such print instructional materials in accessible formats.

(d) For purposes of this section, the term—

(1) “accessible format” means an alternative manner or form that gives an eligible person access to the work when the copy or phonorecord in the accessible format is used exclusively by the eligible person to permit him or her to have access as feasibly and comfortably as a person without such disability as described in paragraph (3);

(2) “authorized entity” means a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities;

(3) “eligible person” means an individual who, regardless of any other disability—

(A) is blind;

(B) has a visual impairment or perceptual or reading disability that cannot be improved to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or

(C) is otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading; and

(4) “print instructional materials” has the meaning given under section 674(e)(3)(C) of the Individuals with Disabilities Education Act.

(Added Pub. L. 104–197, title III, §â€¯316(a), Sept. 16, 1996, 110 Stat. 2416; amended Pub. L. 106–379, §â€¯3(b), Oct. 27, 2000, 114 Stat. 1445; Pub. L. 107–273, div. C, title III, §â€¯13210(3)(A), Nov. 2, 2002, 116 Stat. 1909; Pub. L. 108–446, title III, §â€¯306, Dec. 3, 2004, 118 Stat. 2807; Pub. L. 115–261, §â€¯2(a)(1), Oct. 9, 2018, 132 Stat. 3667.)

[1] I'm quibbling, but I want to take this footnote to state that including a "fair use" cite in the question is very reasonable, because fair use is often cited as yet another reason to make adaptive copies that go beyond copies authorized by Section 121. Since the copies in this case are without question for those "eligible" under Section 121 (those with reading-impacting disabilities), we're going to sideline fair use at Section 107 for this question, but it very much is a part of the toolbox of creating adaptive works for non-Section 121-eligible disabilities.

[2] There is controversy, but no definitive authority, on if all not-for-profit educational institutions meet the criteria.  Academic publishers have taken a position that it only applies to institutions for the blind, not just any old school or college.  However, an uncontradicted conclusion in the October 10, 2012 district court decision in Authors Guild V. Hathitrust, 902 F. Supp, 2d 445 (2012) opines that because of their mandate to provide accessibility under the ADA, such institutions all are "authorized entities" under Section 121.  Until I read otherwise, my guidance errs on the side of accessibility (see https://wnylrc.org/index.php/raq/accessibility-options-school-ebooks).

[3] In fact, having to abide by this type of requirement could undercut some of the more vital applications of fair use, such as parody or innovation.

[4] If this distinction intrigues you, check out the commentary at  https://www.copyright.gov/1201/2021/comments/Class%2008_InitialComments_Accessibility%20Petitioners%20II.pdf

[5] I am slightly wary of a system that would force a student to "register" with the library as needing ADA accommodations, but depending on how access is granted, some type of additional log-in or control might be wise.  At higher ed institutions, students and employees arrange accommodation per a policy, and accommodations are generally confirmed in writing, so signing up for access to adaptive copies could be the way to go.  But this will be driven by technology, and care must be taken to not put up any additional hurdles to access.  If any readers out there have solved this issue at your institution, I'd appreciate hearing about it!  Please send that to info@losapllc.com.

This question was submitted by a system serving elementary and secondary schools.

The answer for those schools (and for higher education, too) is: if the viewing of the DVD is tied to the reading of the book and the content is part of the class/curriculum, then YES, it can be viewed in class.

This exception to infringement by a school is found in 17 U.S.C. 110  (1), which states:

...the following are not infringements of copyright:

(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;

So, to be clear: at a not-for-profit school, as part of the curriculum, in the school's designated learning space, the "movie based on the book" can be viewed as part of  the curriculum...so long as the copy being watched was not pirated or otherwise obtained through the shady  (but now losing ground to illegal streaming) DVD black market.

Thank you for this question.

MAKING A COPY ON THIS MACHINE

MAY BE SUBJECT TO THE COPYRIGHT LAW OF THE UNITED STATES

This means 4 important things:

1.  Copying a copyright-protected work here could be a copyright violation[1].

2.  Copying protected works is sometimes allowed under "fair use."[2]  Our school's fair use policy is posted INSERT.

3.  Copying a copyrighted work to accommodate a disability under the ADA is allowed.   However, to do that, please see the [insert office for disability services] staff, since adaptive copies have special rules,[3] and we want to help you (or a person you are assisting) exercise your rights.

4.   Under the TEACH Act,[4] you may display or perform certain copyright-protected content in class, but that does not allow you to make additional copies for in-class or online instruction.  Please don't make copies that exceed the permission obtained by the school (unless you use our policy to determine it is fair use).

The copy machines are here for your use, and we appreciate your consideration of these laws.

Thanks!

[1] 17 U.S.C. 106 reserves the making of copies to the copyright owner.

[2] 17. U.S.C. 107 allows copying under certain circumstances, but simply "educational" or "not-for-profit"  use is not enough.  Read the guide at the link!

[3] See https://www.loc.gov/nls/about/organization/laws-regulations/copyright-law-amendment-1996-pl-104-197/.

[4] Section 110 of the Copyright Act.

MAKING A COPY ON THIS MACHINE

MAY BE SUBJECT TO THE COPYRIGHT LAW OF THE UNITED STATES[1]

This means 4 important things:

1.  Copying a copyright-protected work here could be a copyright violation.[2]

2.  Copying protected works is sometimes allowed under "fair use."[3]  We can't give you legal advice, but if you want to learn more about "fair use," go to https://www.copyright.gov/circs/circ21.pdf or see the [INSTITUTION NAME] Fair Use policy at [LINK].

3.  Copying a copyrighted work to accommodate a disability under the ADA is allowed.   However, to do that, please see the library staff, since adaptive copies have special rules,[4] and we want to help you (or a person you are assisting) exercise your rights.

4. As a library open to the public, there are special circumstances under which we get to make copies (libraries are special).  However, to qualify for that protection, this notice (which we have, by law, placed over the copier right in front of you), has to say what it says in bold at the very top, and we have to operate by this rule:

Any person or group is forbidden to use this machine to engage in the related or concerted reproduction or distribution of multiple copies of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group.

What does that mean? Entire classes should not come here and copy the whole text book for a course![5]  Please don't do that.[6]

The copy machines are here for your use, and we appreciate your consideration of these laws.

Thanks!

[1] This precise language is required by 17 U.S.C. 108 for the library and its employees to be protected against allegations of secondary infringement.

[2] 17 U.S.C. 106 reserves the making of copies to the copyright owner.

[3] 17. U.S.C. 107 allows copying under certain circumstances, but simply "educational" or "not-for-profit" use is not enough.  Read the guide at the link!

[4] See https://www.loc.gov/nls/about/organization/laws-regulations/copyright-law-amendment-1996-pl-104-197/.

[5] This is covered by 17 U.S.C. Section 108(f).  Section 108 also lets libraries make copies for other uses...but that is for libraries, not regular people or students using a copier in a library.

[6] Seriously, if we see you doing that, we have to ask you to stop.

The school may be covered by Fair Use but for this scenario, it doesn't need to be in order to make the recording proposed by the member.

Why?

Because Section 121 of the Copyright Act allows "authorized entities" (like schools serving those with IEP's)[1] the right to make a copy in an "accessible format" (like an audio file) for "eligible persons" (like a student with an IEP), without it being an infringement.

Of course, there's always a catch.  In addition to precautions like the one described by the member (limiting access to only those who need it), the exception under Section 121 has other requirements, such as:

• The accessible copy has to have a copyright notice.
• The accessible copy has to have a note stating no further copies are authorized.
• It doesn't apply to computer programs.[2]

I am putting a copy of Section 121, which was most recently amended in 2018, below this answer, so members can review its requirements and consider how it might apply in their institution.

Now, I will say that if there wasn't a Section 121, there is a strong chance the format conversion described by the member would qualify as a Fair Use.  In fact, the 2nd Circuit Court of Appeal, which is the first level of appeal for copyright cases in New York State, has found Section 121's to bolster educational institutions' claims of Fair Use.[3]

But between a rock-solid exemption like Section 121, and a shifting, 4-part formulaic one like Section 107 ("Fair Use"), I say: go for the rock-solid exemption. 

The law takes assured access for those with disabilities seriously, and that regard is important to strengthen through robust and repeated use.

Thanks for a valuable and carefully thought-out question.

Here is the full text of section 121:

(a)

Notwithstanding the provisions of section 106, it is not an infringement of copyright for an authorized entity to reproduce or to distribute in the United States copies or phonorecords of a previously published literary work or of a previously published musical work that has been fixed in the form of text or notation if such copies or phonorecords are reproduced or distributed in accessible formats exclusively for use by eligible persons.

(b)

(1)Copies or phonorecords to which this section applies shall—

(A)  not be reproduced or distributed in the United States in a format other than an accessible format exclusively for use by eligible persons;

(B) bear a notice that any further reproduction or distribution in a format other than an accessible format is an infringement; and

(C) include a copyright notice identifying the copyright owner and the date of the original publication.

(2)The provisions of this subsection shall not apply to standardized, secure, or norm-referenced tests and related testing material, or to computer programs, except the portions thereof that are in conventional human language (including descriptions of pictorial works) and displayed to users in the ordinary course of using the computer programs.

(c)

Notwithstanding the provisions of section 106, it is not an infringement of copyright for a publisher of print instructional materials for use in elementary or secondary schools to create and distribute to the National Instructional Materials Access Center copies of the electronic files described in sections 612(a)(23)(C), 613(a)(6), and section 674(e) of the Individuals with Disabilities Education Act that contain the contents of print instructional materials using the National Instructional Material Accessibility Standard (as defined in section 674(e)(3) of that Act), if—

(1) the inclusion of the contents of such print instructional materials is required by any State educational agency or local educational agency;

(2) the publisher had the right to publish such print instructional materials in print formats; and

(3) such copies are used solely for reproduction or distribution of the contents of such print instructional materials in accessible formats.

(d)For purposes of this section, the term—

(1) “accessible format” means an alternative manner or form that gives an eligible person access to the work when the copy or phonorecord in the accessible format is used exclusively by the eligible person to permit him or her to have access as feasibly and comfortably as a person without such disability as described in paragraph (3);

(2) “authorized entity” means a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities;

(3)“eligible person” means an individual who, regardless of any other disability—

(A) is blind;

(B) has a visual impairment or perceptual or reading disability that cannot be improved to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or

(C) is otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading; and

(4) “print instructional materials” has the meaning given under section 674(e)(3)(C) of the Individuals with Disabilities Education Act.

[1] The literal definition of "authorized entity" is "a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities."  The only case law construing this language interprets it to include educational institutions with obligations to provide ADA access.  For more on that, see footnote #4.

[2] An eBook is not a computer program.

[3] In the 2014 Hathi Trust case (Authors Guild, Inc. v Hathi Trust, 755 F3d 87 [2d Cir 2014])), the court opined that an academic library could qualify for 121's exemption because of its obligation to provide access under the ADA.  This was bootstrapped into an allowance for Fair Use, too.  It's not the smoothest finding, but it's there, and it’s the only line of cases citing 121 as of December 19, 2021.