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
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
. 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
In an attempt to provide
images, a consortium
of art museums
and archives created
the Art Museum
licenses a collective
of images and
its members to
rights with artists,
and museums in
and provides members
with access to
holdings for their
website is located
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
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
- 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.