The guidelines discussed in the previous section were 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. Note, however that one federal appeals court has questioned the use of these guidelines when determining fair use. The Eleventh Circuit rejected the “10% standard” discussed below (copying less than 10% is a permissible educational use) and instead emphasized the importance of a flexible case-by-case fair use analysis. Cambridge University Press v. Patton, 769 F.3d 1232 (11th Cir. Ga. 2014)

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. However, the parties created some standards that were included in a report.

The proposed guidelines are provided here to 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.

Proposed Guidelines for Digital Copying

Under proposed guidelines, educators can digitize analog images (nondigital photographic prints or paintings). Digitizing is traditionally accomplished by scanning a printed photo. In this process, an analog image (that is, a two-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.

Under the proposed guidelines, an educational institution may include digital thumbnail images created from analog images in a searchable catalog used by the institution. A thumbnail is a small-scale, typically low-resolution, digital reproduction that 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 it includes a notice stating that the images shall not be downloaded, copied, retained, printed, shared, modified, or otherwise used, except as provided in the educational use guidelines.

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 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 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 noncommercial 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.

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 music, text, graphics, illustrations, photographs, and/or audiovisual images combined into a presentation using equipment. For example, an instructor in copyright law may use a software program such as Microsoft PowerPoint to create a class presentation that includes still and moving images, music, and spoken words. If you are contemplating preparing multimedia works for classroom instruction, you should download and review Appendix J of the CONFU Report (website listed in the resources section at the end of this chapter).

In general, students and instructors may create multimedia works for face-to-face instruction, directed self-study, or 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, you may use an entire poem of less than 250 words but no more than three poems by one poet or five poems by different poets from the same anthology.
• Up to 10%, but not 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 in its entirety but no more than five images by the same artist or photographer. When using photographs and illustrations from a published collective work, you may use 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. A “field entry” is defined as a specific item of information, such as a name or Social Security number in a database file record. A “cell entry” is defined as the intersection at which 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 required for uses that are commercial or go beyond the limitations of the proposed guidelines.