Does Fair Use Survive the License? Fair Use in the Licensed Landscape: Rights, Risks, and Realities

Abstract

This article explores the complex relationship between copyright’s fair use doctrine and the restrictive licensing agreements that increasingly shape access to digital content in libraries, archives, museums, and the visual arts. As cultural institutions shift toward licensed content, platforms, and proprietary databases, a pressing legal question emerges: can fair use still be exercised within environments governed by licensing? Drawing on case law, scholarly analysis, and real‑world applications, the article argues that fair use remains a viable and essential legal right—even in the presence of a functioning licensing market. It identifies key scenarios where fair use can be harnessed lawfully, including for teaching, scholarship, and digital preservation. It offers practical guidance for navigating the intersection of copyright and contract, and calls for renewed confidence in fair use as a safeguard for access, equity, and educational freedom in the licensed landscape.