2.2 Fair use

In copyright law, the doctrine of fair use limits the exclusive rights of copyright holders by circumscribingcertain conditions under which copyrighted material may be used without permission. Fair use offsets to some extent limitations tofreedom of expression inherent in copyright. The doctrine was developed over the years in case law, and eventually codified inthe 1976 Copyright Act.

Fair use is not a challenge to copyright claims in specific works, in the way that the Bridgeman v. Corel decision is. The doctrine keeps copyright in an image intact, but facilitates educational and scholarly uses of such images, whetherthey reproduce works in the public domain or in copyright. Universities and libraries argue fair use effectively to providescholarly content to their communities for research and study, limited in extent and duration, and, in the digital era, behindfirewalls of usernames and passwords. Such content includes image collections as well as written materials.

In art history publishing, fair use may be more applicable to scholarly articles than to monographpublication, where the publisher and author have commercial stakes, however tiny, in the publication of the images. For several years,the College Art Association has advocated an aggressive stance, arguing that many reproductions of images in art historicalscholarship should be qualified as supportive of "criticism," that many such reproductions should thus not require copyrightpermission, and that fair use offers a compelling line of defense against alleged copyright infractions by scholars who can showcritical use.

For all of these reasons, claims of fair use currently promise only limited relief from problems of publishingimages in print or digital form with worldwide access. The doctrine is of considerable value, however, in facilitating access todigital publications within educational and scholarly communities, where works with copyrighted images may be made available inpassword-protected environments.