About the guidelines
The Visual Resources Association (VRA) recently adopted guidelines to help curators, archivists, educators and others involved with the acquisition and display of visual materials apply the fair use provisions of the Copyright Act.
How to use the guidelines
Remember that the guidelines are not law and address the limited purposes acquisition and display of visual resources by teachers for study and classroom use.
If you wish to use visual resources for other purposes, these guidelines do not apply. This does not mean your use is not a fair use, only that you must evaluate your use in accordance with the fair use consideration factors provided in Section 107 of the Copyright Act.
The Acquisition and Use of Images in Non-Profit Educational Visual Resources Collections
As published by the Visual Resource Association (VRA) Committee on Intellectual Property Rights:
Many educational disciplines are dependent upon the use of illustrative images for teaching purposes. Visual resources collections which support those disciplines strive to assemble the best resources in terms of technical quality, fidelity to the underlying work, accuracy of basic identifying information, and flexibility of access and utilization. The development and use of these resources should be guided by the following principles in regard to acquisition, attribution, display and responsibility.
The acquisition and use of image resources, as with any intellectual property, is governed by legal conditions, as well as by practical, technical, and scholarly considerations. Intellectual property law, including the concept of Copyright, attempts to balance the sometimes competing interests of those who produce or provide such resources, and those who use them. It is the intent of this Guide to enable the visual resources professional to acquire image resources for educational, non-profit use in a manner that respects the rights and concerns of providers, while acknowledging public domain rights and educational exemptions such as Fair Use.
Although these guidelines have been reviewed by legal counsel, the content represents the consensus of visual resources curators and does not constitute a legal document. For further guidance on acquisition, attribution, display, and responsibility, individual visual resources curators should consult the legal counsel of their respective educational institutions.
Acquisition of visual resources falls into several categories: purchase and license, donation, and copystand photography.
Uses outside the understood parameters described above, such as use on an unrestricted website or in print publications, including scholarly publications, are not covered in this document. Such uses to be considered fair must be judged independently and individually, using the four-factor analysis described in Section 107 of the Copyright Act of 1976. The four factors to be considered in determining if a use is a fair use are: (1) purpose and character of the use; (2) nature of the copyrighted work; (3) amount and substantiality of the material used; and (4) the effect on the market.
To the extent that such information is available, it is recommended that all images acquired for the permanent archive of an educational institution should be identified with the following:
While the traditional means of display for such image archives have been through projection, or otherwise viewing the physical surrogate (photograph, slide, video, film), the introduction of new technologies, specifically the digital environment of the Internet and the World Wide Web has expanded the display options. There is little in the way of legal precedent, code, or case law which addresses the issues particular to educational image archives. However, it seems reasonable to expect that digital materials should be available to the same user group that the analog collection serves, for the same purposes.
Analog materials acquired as outlined above may be used in digital format as follows:
The educational institution holding such an archive should have a designated overseer who is responsible for carrying out the principles outlined above. A budget sufficient to make purchases described above should be allocated. Information on source data should be available to the collection users.
Under the law, liability may be held by both the institution and the individual; however, individual liability may depend on the institution's policies. Usually, although not always, individuals who adhere to institutional policies will be indemnified by their institutions against all the costs they may suffer if they are sued. Following institutional policy is a good way for individuals to stay within the protections of a good-faith fair use defense. It is recommended that the designated overseer discuss institutional policies with the institution's legal counsel.