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C. Proposed Educational Guidelines on Fair Use

The guidelines discussed in the previous Section have been approved by a consensus of educators, scholars and publishers (copyright owners). Since these educators and copyright owners have come to an agreement, it is unlikely that a publisher will sue an educator who uses material in a manner that is permitted by the guidelines. Besides these guidelines, there are others that have been discussed and proposed, but not formally approved. These proposed guidelines lack the official consensus of the adopted guidelines described in Section B. However, the parties created some standards which were included in a report and it is hoped that these proposed guidelines will eventually be adopted. This section discusses these proposed educational guidelines.

We provide the proposed guidelines because they give you a ballpark idea of what may be permissible. For example, these standards may help you formulate a fair use analysis, as described in Chapter 9. You can access the full report from which these proposed guidelines originated at the Patent and Trademark Office's Conference on Fair Use (CONFU) site at http://www.uspto.gov/web/offices/dcom/olia/confu/index.html . For current information as to whether any of these proposed guidelines have been adopted, check Christine Sundt's Art and Copyright website at http://darkwing.uoregon.edu/~csundt/copyweb/. For further information on the proposed guidelines, see the resources section at the end of this chapter.

1. Proposed Guidelines for Digital Copying

Under proposed guidelines, educators can digitize analog images (non-digital photographic prints or paintings). Digitizing is traditionally accomplished by scanning a printed photo. In this process, an analog image (that is, a three dimensional printed photograph or slide created by a non-computer photo processing method) is converted into a digital format known as binary code. This digital format is stored in a computer file. Under the proposed guidelines, educators can digitize a lawfully acquired analog image for educational use unless the image is readily available in usable digital form at a fair price. The proposed guidelines for digital imaging are located at the Patent and Trademark Office's CONFU site at the Web address listed above.

Under the proposed guidelines, an educational institution may use digital thumbnail images created from analog images for inclusion in a searchable catalog used by the institution. A thumbnail is a small scale, typically low resolution, digital reproduction which has no commercial or reproductive value.

An educational institution may display images digitized under the proposed guidelines through its own secure electronic network, provided that notice is included stating that the images shall not be downloaded, copied, retained, printed, shared, modified or otherwise used, except as provided in the educational use guidelines.

2. Proposed Guidelines for Using Digitized Images in Lectures, Scholarly Presentations or Publications

Under proposed guidelines, an educator may display a digital image prepared from an analog image if the display is for educational purposes such as face-to-face teaching or research and scholarly activities at a nonprofit educational institution. An educational institution may compile digital images for display on the institution's secure electronic network to students enrolled in a course given by that educator for classroom use, after-class review or directed study. Educators, scholars, and students may use or display digital images in connection with lectures or presentations in their fields, including uses at non-commercial professional development seminars, workshops and conferences.

The proposed guidelines do not permit reproducing and publishing images in publications, including scholarly publications in print or digital form, for which permission is generally required.

AMICO--A System for Educators to Negotiate Digital Images

In an attempt to provide educational access to copyrighted images, a consortium of art museums and archives created the Art Museum Image Consortium (AMICO). AMICO maintains and licenses a collective digital library of images and documentation. AMICO enables its members to negotiate digital rights with artists, artists' estates and museums in other countries, and provides members with access to each others' holdings for their own educational uses. AMICO's website is located at www.amico.org

3. Proposed Guidelines for Students or Instructors Preparing Multimedia Works

There are extensive proposed guidelines for the creation and use of multimedia works. Multimedia works include any combination of music, text, graphics, illustrations, photographs and audiovisual imagery combined into an integrated presentation, along with accompanying projection and playback equipment. For example, an instructor in copyright law may use a software program such as Microsoft Power Point to create a class presentation that includes still and moving imagery as well as music and spoken words. If you are contemplating preparing multimedia works for classroom instruction you should download the CONFU Report (website listed above) and review Appendix J in that report.

In general, students and instructors may create multimedia works for face-to-face instruction, directed self-study or for remote instruction provided that the multimedia works are used only for educational purposes in systematic learning activities at nonprofit educational institutions. Instructors may use their multimedia works for teaching courses for up to two years after the first use.

There are also certain "portion limitations." An educational multimedia presentation may include:

  • up to 10% or 1,000 words, whichever is less, of a copyrighted text work. For example, an entire poem of less than 250 words may be used, but no more than three poems by one poet, or five poems by different poets from any anthology.
  • up to 10%, but in no event more than 30 seconds, of the music and lyrics from an individual musical work.
  • up to 10% or three minutes, whichever is less, of a copyrighted motion media work (for example, an animation, video or film image).
  • a photograph or illustration may be used in its entirety but no more than five images by an artist or photographer may be reproduced. When using photographs and illustrations from a published collective work, no more than 10% or 15 images, whichever is less. Or,
  • up to 10% or 2,500 fields or cell entries, whichever is less, from a copyrighted database or data table may be reproduced. A field entry is defined as a specific item of information, such as a name or Social Security number in a record of a database file. A cell entry is defined as the intersection where a row and a column meet on a spreadsheet.

Only two copies of an educational multimedia project may be made, only one of which may be placed on reserve. An additional copy may be made for preservation purposes, but may only be used or copied to replace a copy that has been lost, stolen or damaged. If an educational multimedia project is created by two or more people, each creator may retain one copy for the educational purposes described in the proposed guidelines. Permission is needed for uses that are commercial or go beyond the limitations in the proposed guidelines.

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