The More You Borrow, the Better You Feel: How Fair Use and Public Domain Shape Access to Audiobooks

In the last few years, many public works and recognizable characters have entered into the public domain, from Sherlock Holmes to Bambi. But what does that mean for audiobook accessibility for listeners, particularly through their local public library?

Fair use and public domain are both unique and distinct legal concepts that work together to allow access to creative works without formal permission. According to the US Copyright Office Fair Use Index, the term “fair use” refers to allowing the unlicensed use of copyright-protected works in certain specific circumstances to promote freedom of expression.

The nature of the copyrighted work plays an important role — for instance, a factual work such as a news item or technical article would be more likely to support a claim of fair use than a more creative work, such as a novel, movie, or song. Also, the “quantity and quality” of the copyright material used in a given project affects whether or not it constitutes fair use. In the context of audiobooks, for instance, playing a thirty-second clip to discuss a narrator’s tone during a performance workshop would constitute fair use, versus playing an entire narrated chapter to substitute the purchase of said audiobook.

By contrast, works considered to be in the “public domain” are not protected by intellectual property laws and are owned by the public, according to the University of Pittsburgh Library System. According to a 2003 Supreme Court ruling, author credit and permission are not required; however, citing sources is always considered best practice, particularly for a professional project.

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All copyrights have expired for works made in the United States prior to 1926. That is why there are often multiple audiobook versions of works such as The Great Gatsby, which was published in 1925 and entered the public domain on January 1, 2021.

As for why audiobook recordings are held to separate copyrights even if the original text is in the public domain, CEO of Common Mode Inc. Jessica Escalona says it all has to do with the protection of the new medium of the audio version, which is unique in its own right.

“The use of [an individual] narrator’s voice is a different medium than the print version,” says Escalona.

Escalona adds that many authors opt to use ACX, owned by Audible, to publish their audiobooks independently. However, those rights and licenses are automatically owned by Audible, which in turn are not always accessible to libraries.

“As a producer, it’s hard not to see the monopolization of audiobooks, especially in the digital space,” says Escalona. “And on the producer side of things, I have seen the switch from doing CD releases to print-on-demand CDs in the past few years.”

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Multiple recordings of best-selling titles can happen as well. For instance, the original audiobook of the hit novel The Martian by Andy Weir was initially produced in 2013 by Podium Publishing and narrated by renowned voice actor R.C. Bray. The contract with the original publisher expired in 2020, and the novel was rerecorded by voice actor Wil Wheaton after Audible made a higher bid and won the contract.

Unfortunately, because The Martian is a modern title and not within the public domain, Bray’s original audio recording is no longer publicly available. (Fun fact: I happen to own a precious hard copy of the original, signed by Mr. Bray himself, having worked on its production as an audio proofer many moons ago.)

One fact that the general public may not be aware of is that most modern audiobooks are licensed, not owned, by libraries. OverDrive is a go-to vendor that sells e-audiobooks and ebooks specifically to libraries, which then will purchase a specific number of items on the app that can be borrowed one at a time — similar to how physical books are acquired.

To maximize offerings, many libraries will work together to make titles available across branches, particularly because licenses for digital offerings can often be more expensive than those for physical versions. For instance, my local Houston Public Library (HPL) uses the Libby app, owned and developed by OverDrive, which includes a “Notify Me” function that lets a patron mark an audiobook title if it is not readily available. Libby then anonymously shares the interest in the title with the library branches linked to your library card. The more interest in a given title or genre, the better guidance the library staff has when curating digital collections.

“Audiobooks are generally more expensive than e-books because they are typically purchased in a perpetual access model,” says Sandy Gaw, Houston Public Library director. “Most e-books are licensed and must be re-purchased after the license expires.”

Bottom line — the more you borrow, the better the digital selection that will be available to you. So dive in, and maybe discover a new narrator or two that could put a twist on a classic tale for you, all while supporting and promoting independent artists and public access to literacy just by tuning in.

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