Fair use guidelines are widely misunderstood. A common misunderstanding about guidelines is that they are part of the law. Fair use guidelines are not law. Compounding the challenge of addressing these misunderstandings is the facts that there are a lot of materials out there, especially online, that misstate the law incorporating guidelines, with the benefit of intentions most often. A resource often directed it, K through 12 schools may say, "The copyright law only allows you to do XYZ." A good example, which would be a statement from the guidelines is only allows you to copy up to 100 words from one chapter of a book. It is stated in that resource, if it's law, but it is not.
That's the number one most important thing I want you to remember about guidelines. Let's talk about what they really are. There are actually several different sets of guidelines out there. The ones that are must often relied upon and cited are the agreement on guidelines for classroom copying, which often called just the classroom copying guidelines which was a part of the congressional report on the Copyright Act of 1976, our current law. And then a set of guidelines that came out of the Conference on Fair Use in the late 80's. That sometimes referred to as CONFU, C-O-N-F-U.
The classroom copying guidelines were a result of a negotiation between representatives of copyright owners like publishers etc., and representatives for the interest of users of copyrighted information like the American Library Association. Those guidelines do spell out some specific numbers that act as a safe harbor or a starting point for fair use. For example, the guidelines say, "For preparation for teaching, a teacher may make one copy of a book chapter, a journal, article, a short story et cetera." That means if you stay within those limits, you can be very confident that your use is going to be considered a fair use. That does not mean that the law does not allow you to engage in more copying than that. That's why it's called the safe harbor and that's why I say the guidelines are starting point. The classroom copying guidelines address copying for use in the classroom by a teacher or by students. And again, these were written in the 70's. This was before we had a whole lot of digital going on and for the most part, not a lot of computers being use in schools.
The CONFU guidelines were an attempt to create guidelines that took into account, media and the developing digital or online world. A group of individuals selected are from various different areas met several times trying to establish guidelines for that type of situation that I just describe, but they were never able to come to agreement. The final report, kind of where they left things when the task force said, "We just can't get anywhere on this. We've done our best. We're not going to come to an agreement on what should be allowed." Again, this would still, even if they had, it would have been a minimum of what would constitute fair use, like the classroom copying guidelines. These guidelines were intended to service a safe harbor, not a limitation.
The final report of the CONFU task force was released, stating where they had left things when the task force broke up. And this is widely used as if it was widely accepted and when in reality is not. Many of the members that I hear from K-12 people come from the CONFU guidelines. For example, you can use up to 10%, but no more than 30 seconds of a song, a recorded song. Or for AV media, you can use up to 10% or no more than three minutes. These are all should be considered at least the minimum of what we constitute fair use.
As a bottom line, I would say that guidelines of any sort are meant to be a tool to help understand and apply fair use. They're not meant to be a limit on fair use, just a starting point. And remember that fair use is meant to be, the whole intention of fair use, is it be a flexible tool. There are known numbers in the copyright definition of fair use. As a matter of fact, a court has recently rejected application over the classroom guidelines as a maximum limit on what constitutes fair use. You can use fair use to be proactive and engaging and uses to go well beyond the guidelines. Anytime you see a number, specific number, a quantitative number, no digit is not part of fair use law.
The bottom line is that any guidelines should be use as a tool and not considered a rule. When you see a quantitative number, know that that is not part of the law. As a matter of fact, a court in 2012 and then was reaffirmed in 2014 by an pallet court held that application of the classroom copying limitations, the numbers where it could not be use as a limitation on fair use. Know that fair use is meant to be a flexible tool and they're simply aren't quantitative answers to what constitutes fair use.
This lesson is designed to provide accurate and authoritative information regarding application of copyright law in schools. Nothing in this lesson is intended to constitute legal advice, and nothing herein should be considered legal advice. If legal advice is required, the reader should consult a licensed attorney in his or her own state. Neither ABC-CLIO, LLC, nor the author makes any warranties or representations concerning the information contained in this lesson or the use to which it is put.