Wikipedia : “Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test. It is based on free speech rights provided by the First Amendment to the United States Constitution. The term “fair use” is unique to the United States; a similar principle, fair dealing, exists in some other common law jurisdictions. Civil law jurisdictions have other limitations and exceptions to copyright.”
The Fair use law is obscene. In a nutshell, it allows anyone to steal an image under the protection of the law. Since it is vague in its limitation, it is constantly being abused by copyright infringement specialists also in favor of the the Orphan Work law. Bloggers use this Fair use law to steal and post images for free. Individuals, under the same umbrella, will upload images they do not own to Photo Sharing sites. It is a ridiculous law.
In the print world, it was not causing too much damage. What was the chances of someone ever seeing a reference paper in a highly academical thesis in some corner of a unknown university. But with the internet, it becomes everywhere. Not because everyone starts reading more PH. D. thesis, but rather because if they like the illustrations, they will just grab it and put it on their site. So one Fair use becomes multiple abuse.
Furthermore, in a country where academia is not highly regarded, the argument becomes “why do they get to use for free and not me”. And numerous non academias, under the false pretext of review or analysis, social commentary and other “free speech” are taking advantage of this law. One good example is the infamous Perezhilton.com lawsuit currently going now. Although generating revenue ( some mention multi million dollars a year) with his social commentary of stolen paparazzi images, the owner of the blog refuses to pay any license fee. Fair use, he says.
If anything, copyright protection laws should be harsher. Advocate of free sharing, especially when it is something that doesn’t belong to them, should be dramatically punished. It frightens me to read blogs of photography professionals all in favor of free music file sharing. I do not think they realize that this can, and will apply to images.
This type of mis understanding and abuse of the law will only get more widespread if nothing is done.
Fair use is unfair. A copyrighted images should be treated as a copyrighted images for all usage. And if the owner of the copyright wants to charge an extremely reduce fee , or free, for scholarship and review, than it should be up to them, not up to the writers. This would be interesting topic for the professional associations to address (APA, ASMP, NPPA, PACA, CEPIC, etc)