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Inside Collection (Report): Art History and Its Publications in the Electronic Age
In copyright law, the doctrine of fair use limits the exclusive rights of copyright holders by circumscribing certain conditions under which copyrighted material may be used without permission. Fair use offsets to some extent limitations to freedom of expression inherent in copyright. The doctrine was developed over the years in case law, and eventually codified in the 1976 Copyright Act.1 According to the act, fair use purposes include "teaching (including multiple copies for classroom use), scholarship, or research." The terms of fair use are highly generalized, including "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes," "the nature of the copyrighted work," "the amount and substantiality of the portion used in relation to the copyrighted work as a whole," and "the effect of the use upon the potential market for or value of the copyrighted work." Under the provisions of the act, one of the purposes that may qualify for fair use of copyrighted works is "criticism." It is on that ground, along with the potentially positive impact of wide circulation on the commercial value of the copyrighted work, that art historians might claim fair use.
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, whether they reproduce works in the public domain or in copyright. Universities and libraries argue fair use effectively to provide scholarly content to their communities for research and study, limited in extent and duration, and, in the digital era, behind firewalls 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 monograph publication, 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 historical scholarship should be qualified as supportive of "criticism," that many such reproductions should thus not require copyright permission, and that fair use offers a compelling line of defense against alleged copyright infractions by scholars who can show critical use.2 Publishers and authors have been hesitant to accept this untried guideline, however, and CAA is in the process of revising the statement. A recent, wide-ranging review of the current state of fair use law and policy by the Brennan Center for Justice at New York University makes clear that the doctrine has not yielded the kind of creative and critical exemptions to copyright law for which it was intended.3 As unauthorized uses of copyrighted images in scholarly publications rarely constitute a sufficient financial threat to incur legal challenges, there is insufficient case law to establish the purview of the doctrine’s applicability to scholarship.4
For all of these reasons, claims of fair use currently promise only limited relief from problems of publishing images in print or digital form with worldwide access. The doctrine is of considerable value, however, in facilitating access to digital publications within educational and scholarly communities, where works with copyrighted images may be made available in password-protected environments.
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This work is licensed by Hilary Ballon and Mariet Westermann under a Creative Commons Attribution License (CC-BY 2.0), and is an Open Educational Resource.
Last edited by Chuck Bearden on Dec 1, 2006 4:49 pm -0600.
"Also from Rice University Press"