RULES OF THUMB FOR DIGITIZING IMAGES FOR EDUCATIONAL PURPOSES

The University of Texas System takes a different approach from that taken by the Educational Fair Use Guidelines for Digital Images to provide guidance for determining the fair use of images. Whereas the Guidelines suggest that the use of digitized images is only fair use if the library requests permission for the use at the same time such images are digitized, our Rules of Thumb suggest a different inquiry. In other respects, except as noted within the Guidelines themselves, the GuidelinesUSINGAND provide helpful guidance and are recommended. Of course, there are fair uses beyond these Rules of Thumb and the Guidelines, but to assess whether such a use would be a fair use requires the use of the statutory four factor fair use test and will require permission and the payment of whatever fees the owner may ask if the use exceeds fair use.

1. Is the image you wish to digitize readily available online or for sale or license at a fair price?

• If YES: Point to, purchase or license the image. Do not digitize it unless negotiations are underway and purchase or license appears likely. If digitized in accordance with this "contract pending" exception, use in accordance with these Rules of Thumb until the purchase contract or license is finalized and the digital image has been delivered.

• If NO: Digitize and use in accordance with the following limitations:

Display the images over a secure university network to students enrolled in the classes for which the images are prepared.

Make the images inaccessible at the end of the semester.

Faculty members may use images outside of class in peer conferences.

Students may use images for personal study, educational use (academic course assignments and other requirements for degrees), may publicly display images incorporated into course assignments etc., and may retain them in their portfolios.

2. Schedule periodic review of digital availability (available online or for sale or license at a fair price). A three to five year review period is suggested, although images should be more quickly acquired where they are known to be readily available at a fair price before it is time for the three to five year review.

If you have questions about the application of these Rules of Thumb, please let me know. I will develop a frequently asked questions supplement to these Rules of Thumb with your questions to clarify their meaning for all those who wish to utilize them effectively.

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Office of General Counsel | Intellectual Property Section