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Compound Eye

Compound Eye

The many facets of science photography

The awkward copyright collision of Fair Use and Creative Commons

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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.

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

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