Q. There are lots of guidelines on how much we can use under fair use. How do I navigate the sea of guidelines and “rules of thumb” for fair use that I find online?
First, it’s important to know that the only binding authority on the limits of fair use comes from the text of Section 107, where fair use is codified in the law (though the text was never really intended to do more than guide judges as they continued to evolve the doctrine, not bind them to a particular vision of it), and the court cases applying that text to particular facts. Guidelines like the ones created in 1976 do not have the force of law and were never intended to serve as outer boundaries that users would have to obey. Guidelines that give a numerical boundary, like “no more than 10% or 1000 words,” are especially dubious, as courts have expressly abandoned such limits, looking instead to the interplay of the four statutory factors and the overarching purposes of copyright. Recent cases have found fair use where entire works were used in highly transformative contexts.
Second, it’s important to look at the individuals and groups who sponsor the guidelines, FAQs, and websites about fair use as you try to determine how useful or trustworthy they are. Like its predecessors, the Code of Best Practices for Academic and Research Libraries is based on research into the challenges that libraries face and the fair use solutions that librarians themselves favor; it is grounded in two years of interviews and small group discussions with librarians, plus a round of review by a panel of copyright experts. As a statement of community practice, the Code adds a powerful new tool to the existing guidance available to librarians and library users with questions about fair use. Teachers can also look to codes developed by media literacy educators, open courseware designers, poets, and online video makers for guidance.