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The awkward copyright collision of Fair Use and Creative Commons

The views expressed are those of the author and are not necessarily those of Scientific American.

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Here is a hypothetical copyright situation where Creative Commons, Fair Use, and Open Access collide in an unusual way to suppress the spread of information. Actually, no. Here is a real scenario. It happened to me twice in the past month, and several times over the past year.

A scientist asks to include some of my photographs in a scientific paper. Great! I nearly always say yes to such requests.

Legally, though, they do not need permission. Printing images as natural history data in a scholarly publication should be considered Fair Use. And I want them use the photos anyway. But there is one problem. The journals in question apply a Creative Commons license to all content appearing the article, tagged for downstream commercial re-use. Based on Journal X’s practices, my photographs would be isolated from the paper, uploaded to Wikimedia Commons, and available for corporations who normally pay for my images to get them as freebies. This scheme is Open Access as a form of rights-laundering. As a private photographer, I cannot afford it.

So what do I do? I cannot, and do not wish to, tell the scientist not to use my image. After all, their use is Fair Use.

But Fair Use is an exemption from copyright enforcement- it is not a transfer of rights. There is no conceivable reading of Fair Use that allows an image user to then broker permissions for other users. Journal X cannot license my work away from me without my say so. They do not have standing to apply a CC license to my work.

The solution should be easy enough. Journal X could exempt contributed images from their blanket CC-license, and they should ensure the images are not atomized and separated from the rest of the paper. The Fair Use of images depends on their context within the publication, anyway.

For logistical reasons, though, most Open Access journals are reluctant to do so. They reject images if required to handle their licensing separately. I am not willing to give away all my rights, and the journal is not willing to bend their policies. The result is that the paper does not include the images even though both the authors and I would like it to. Journals that do not make exceptions to Creative Commons licenses cannot take advantage of Fair Use protections of copyright law.

This is not a problem with Creative Commons per se, but a structural issue with publishers that are inflexible in how they handle content. I thought I’d share it here, though, as a counter-intuitive example of how Creative Commons can suppress the distribution of information.

Alex Wild About the Author: Alex Wild is Curator of Entomology at the University of Texas at Austin, where he studies the evolutionary history of ants. In 2003 he founded a photography business as an aesthetic complement to his scientific work, and his natural history photographs appear in numerous museums, books and media outlets. Follow on Twitter @myrmecos.

The views expressed are those of the author and are not necessarily those of Scientific American.

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  1. 1. andyfarke 1:02 pm 01/20/2014

    You bring up some very good points here, and in my personal experience many scientists (and illustrators) aren’t necessarily aware of the implications of placing stuff as CC-BY (discussed tangentially in this post). For a recent open access paper that involved some original artwork, I worked with the artists to 1) ensure that they were aware of the CC-BY license for the paper and okay with the license for their work; and 2) ensure that they were compensated appropriately. Of course, the artwork in question was done specifically for the project, and I was also fortunate to have a (modest) budget to support this. Other situations are certainly different.

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  2. 2. JeffreyBeall 4:15 pm 01/20/2014

    I disagree with this: “Legally, though, they do not need permission. Printing images as natural history data in a scholarly publication should be considered Fair Use.”

    I don’t think that fair use allows scholarly publications to publish copyrighted pictures in articles without permission.

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  3. 3. tonyarduini 6:06 pm 01/25/2014

    I wonder if the resolution to this problem is in the variety of types of CC licenses. There are licenses that don’t allow commercial reuse. The blanket policy of the journal to send all materials to Wikimedia Commons does seem unfortunate in this case.

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  4. 4. Photo80 4:11 pm 03/1/2014

    Correct me if I’m wrong, but how to a magazine that has had neither a license to use the image, or ownership rights over it, suddenly be able to subject an image to a creative commons license? Distributing it in this way would be a clear breach of copyright according to my understanding.

    My legal understanding was that a person or entity cannot give away rights they do not have in the first place.

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