

The awkward copyright collision of Fair Use and Creative Commons - elehack
http://blogs.scientificamerican.com/compound-eye/2014/01/19/the-awkward-copyright-collision-of-fair-use-and-creative-commons/

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jmillikin

      > 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.
    

As noted in the article, the journal doesn't have the right to change the
license on someone else's work. This is an ongoing problem with liberal
copyright licenses in general; I often receive emails from people who ask me
to release my software under MIT or BSD3 rather than GPL so they can
"relicense" it, and sometimes even several back-and-forth emails are
insufficient to convince them that copyright licenses aren't mutable by anyone
but the owner.

For the author of this piece, I think the solution is relatively
straightforward:

1\. Point out to the journal that having a photo in one of their articles does
not grant automatic permission to put that photo on Wikimedia. If the
journal's software is unable to handle these cases separately, then the
software should be corrected.

2\. Ask Wikimedia kindly to remove the author's photos from their collection,
or at least correct the license metadata. I'm sure the Wikimedia editors would
be willing to do this, though they might become unhappy with the journal
editor who uploaded photos without permission.

3\. If someone uses the author's photos for commercial purposes, contact them
and let them know that such use require a commercial license. They will likely
be uncooperative (c.f. the various newspapers who like to source uncredited
photos from Twitter), but some gentle reminders about copyright infringement's
RIAA-engorged penalties should bring them around. If nothing else, they will
likely become much stricter about validating ownership before using a photo.

~~~
the_mitsuhiko
> I often receive emails from people who ask me to release my software under
> MIT or BSD3 rather than GPL so they can "relicense" it,

That makes no sense. People are asking GPL software to be relicensed under
BSD/MIT to make them usable in situations where the GPL is a legal hassle or
impossible to use. I doubt that people even consider relicensing BSD as
something else (besides people practically downgrading BSD to GPL).

~~~
jmillikin
Example:

1\. User wants to use my GPL'd library in their application. Their application
is released as source code under the 3-clause BSD license.

2\. User sends me an email asking me to change my library's license to MIT or
3-clause BSD so their open-source app can use it.

3\. I reply with the longform equivalent of "u wot m8?"

4\. They reply that if I change my license to MIT, they will be able to
"relicense" it to 3-clause BSD and use it as a dependency in their
application's build script.

5\. I explain that they don't need permission to just depend on a library,
since they're not distributing any of it. And besides, if they did include
some of my code in their tarballs, they still can't change the license because
they don't own the copyright.

I suspect this stems from the same sort of pseudo-religious copyright
knowledge that leads to "no copyright intended" disclaimers on YouTube. Lots
of people grew up in the era of Napster and copy-pasted MySpace javascript,
and never really gave much thought to how copyright actually works.

~~~
pytrin
Presumably, User wants to include your library in their open-source BSD
release. If that is the case, what they're asking is correct since a work
extending / modifying a GPL licensed code needs to be released as GPL as well.
That is the main difference between GPL and non-copyleft licenses.

They could distribute their code without your library, as you say, but that
would require more hassle from the end-user, especially if there's some
configuration / integration process that is required to make both work
together.

~~~
jmillikin
My libraries are mostly in Haskell, so depending on them is a matter of adding
a line to a standardized build file. I have not yet received mail from a user
asking me to change a license because they wanted to actually include code in
their works -- it's almost always a misunderstanding of copyright.

------
mcherm
Let me see if I've got this right.

The journal wants to ensure that anyone can read the articles _and all
supporting information_ so they insist the author of the piece allow them to
publish it under a Creative Commons license. The author would like to use one
of this photographer's pictures and requests the permission. The photographer
doesn't want to allow that. He (the photographer) suggests "I'd be happy to
let you could use it in the article as long as you won't let anyone _else_
copy it", but that's not OK with the journal. So the picture doesn't get used.

All sounds right to me. That's how it's supposed to work.

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stormbrew
This doesn't seem like a collision of fair use and creative commons so much as
a simple refusal to use fair use in the first place. The publications have
decided that fair use is not sufficient for their needs, requiring instead a
more explicit licensing agreement that fits their needs better.

~~~
chrismcb
The author even brings this up "This is not a problem with Creative Commons
per se, but a structural issue with publishers that are inflexible in how they
handle content." Then IMMEDIATELY continues with "I thought I’d share it here,
though, as a counter-intuitive example of how Creative Commons can suppress
the distribution of information." EXCEPT this is NOT an example (counter
intuitive, or otherwise) of how CC can suppress distribution. Rather this is
an example of publishers STEALING images. As the author pointed out, if the
paper uses copyrighted photos with permission, or by fair use, the publisher
of the paper CAN NOT just apply CC licensing to those photos. This is not a
problem with CC this is a problem with the publisher.

~~~
michaelt
From what I read in the post I don't think the publisher is stealing the
images so much as rejecting them if they don't meet the license requirements.

While this paper illustrates an unfortunate side-effect, it's really no
different to the Linux kernel rejecting code that isn't under a
GPL2-compatible license.

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fiatmoney
This is almost identical to the issue of open-source license conflicts, where
everyone is OK with their code being freely downloaded / compiled / modified
by users, but not necessarily with the terms under which it can then be
redistributed by those users.

------
vilhelm_s
The author says this is for logistical reasons, but I can imagine some
principled arguments for the journals having such a policy too. The journal
_is_ more useful for everyone if it can also serve as a source of reusable
scientific images. In the ideal case, the authors would notice that they could
not use a copyrighted photo of an ant, so they would go out and take their own
photo, or pay a photographer to do so. If they just used ant photos under fair
use, then nobody would have an incentive to create new CC-licensed ones.

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Kim_Bruning
There is no awkward collision.

This is working exactly as it is supposed to.

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dnautics
author wants to "have his cake and eat it too", and argues from a position of
untenable entitlement. _As a private photographer, I cannot afford it._ But
you, sir, are not _entitled_ to have someone distribute your work on your
behalf.

Perhaps the photographer should consider changing his or her business model
wherein he or she gets paid upfront on a commissioned basis to take
interesting photographs, and release everything freely (with the concomitant
distribution benefits).

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carlosantelo
For me, I'd like people were compensated fairly for their time and investment,
but only once. Then, we will not have to think about this stupid dilemmas. I
wish copyright did not exist, or for it to be really short. I prefer the
former, as in selling a service.

Greetings. \-- Carlos

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SeanLuke
> Printing images as natural history data in a scholarly publication should be
> considered Fair Use.

The author's entire argument rests on this single sentence. And, so far as I
know, it is incorrect.

[I _think_ that by "should be" the author is really saying "is" in a flowery
way: otherwise his entire article is a nonsense hypothetical rather than, as
he says, something which happened in reality.]

~~~
deathanatos
> And, so far as I know, it is incorrect.

Why do you think it is incorrect? See [1]:

> […] the fair use of a copyrighted work […] for purposes such as […] teaching
> […], scholarship, or research, is not an infringement of copyright.

[1]:
[http://www.law.cornell.edu/uscode/text/17/107](http://www.law.cornell.edu/uscode/text/17/107)

~~~
SeanLuke
Publication is not straightforward. For example, if I publish an article in a
Springer journal, Springer owns the copyright on it. They, not I (the
scholar), have published it and are making money off of it. It is my
experience in _publishing_ scholarly work that inclusion of other figures is
often considered to be copyright violation and not fair use.

And let's say that he's self-published, or used some service where he owns the
copyright. Even then, he can't change the license on something just because of
"fair use". He is free to publish his article under Creative Commons, or
license the figure, but he can't do both.

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csense
This phenomenon of a "permissions mismatch" is common enough with various
open-source software licenses that it has its own name: _license
incompatibility_ [1].

[1]
[http://en.wikipedia.org/wiki/License_compatibility](http://en.wikipedia.org/wiki/License_compatibility)

------
diminish
the op must clearly state fair use and forbid re-licensing to the magazine and
the magazine should not relicense (scenario 1). But i suspect, op doesn't do
it because of the fear the magazine will simply skip media with such
restrictions (scenario 2). So op allows fair use, and the magazine re-licenses
wrongly (scenario 3) [edit, or the op may license her work in cc- scenario
4)].

imho, it makes more sense for OP to use this fair use permission as a tool for
generating potential interest for his work, and watch the magazines re-license
them wrongly (scenario 3). if sufficient interest shows up, at least some new
users may accept to pay for this media at the end. it all boils down to a
conversion funnel analysis to decide which scenario makes more sense. ranting
about it in a blog may also increase conversions.

~~~
niels_olson
Should scientific articles start shipping with header comments like software,
stipulating the license of each file?

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upofadown
There is no "collision" here whatsoever. Some people might like to distribute
a photographers work under a Creative Commons licence. The photographer does
not want to permit this. That's the whole thing. The fact that fair use exists
has nothing to do with this.

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silveira
Do not mix non-libre assets with libre ones, do not mix proprietary code with
GPL code, etc.

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taproot
Anybody else close that to conserve battery power and save the planet from
global warming? Cause i did. Fuck thats a lot of vommit on the screen.

