Another Reason For Moving To Open Access: Encouraging Scientific Debates

from the it's-good-to-share dept

Techdirt has written often enough about how copyright is used to censor criticism. QuestionCopyright.org has an interesting post that offers a variation on that theme: copyright getting in the way of a scientific debate.
A band of researchers has been tirelessly trying to demonstrate that a body of scientific work which rests on a paper from over 10 years ago is completely wrong. The only problem is, their argument isn't being allowed to stand or fall on its merits -- instead, copyright restrictions are interfering with their ability to make their case at all.
The issue is that in order to make their case, the researchers need to re-use figures from one of the papers they are questioning. Unfortunately, fair use doesn't necessarily help here, because the journal publishing their new paper, Public Library of Science (PLOS) ONE, uses the Creative Commons Attribution (CC-BY) license for all its material. Fair use cannot be used to change the license under which the images are released -- only the copyright holders can do that, which means the latter are effectively able to block their republication in PLOS ONE:
[The publisher] Wiley has responded ... saying that while they'll allow re-use with no fee under standard copyright, they won't simply relicense the images to be compatible with PLOS ONE's non-restrictive distribution policy. (What Wiley actually says is that they are "unable to change [the images'] copyright status", which is simply false.) It isn't yet clear how this will be resolved. Offering the image at no fee for this one use is not a particularly helpful move on Wiley's part: the restrictions would still be quite onerous, because Wiley's one-off exception would not be passed along to PLOS ONE's readers — instead, they too would have to ask Wiley for permission if they wanted to use the figures in a scientific critique... and so on, ad infinitum.
But over on the Scholary Communications blog at Duke University, Kevin Smith doesn't think that's the case:
the claim that you cannot include material used as fair use in a CC-licensed article is bogus. In fact, it happens all the time. I simply do not believe that no one who publishes in PLoS journals ever quotes from the text of a prior publication; the ubiquitous academic quotation, of course, is the most common form of fair use, and I am sure PLoS publishes CC-licensed articles that rely on that form of fair use every day. The irony of this situation is that it points out that PLoS is applying a standard to imagery that it clearly does not apply to text. But that differential treatment is not called for by the law or by CC licenses; fair use is equally possible for figures, illustrations and text from prior work, and the CC licenses do not exclude reliance on such fair uses.
The solution, he suggests, is the following:
I think there is a way forward here, which is for PLoS to agree to publish the article with all of the borrowings under fair use or by permission clearly marked, just as they would do if those borrowings were all in the form of textual quotations.
Others -- including PLOS -- may disagree. In any case, what this episode highlights is that bridging the two worlds -- journals published under traditional licenses, and those using ones from Creative Commons -- is not straightforward. Relying on fair use as Smith suggests may not be an acceptable solution for some researchers wishing to publish in open access titles, since they might be unhappy about the lack of legal certainty. With open access, that's simply not an issue, since the license is explicitly designed to allow sharing -- and thus healthy scientific debate -- as a matter of course.

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  • identicon
    Anonymous Anonymous Coward, 29 Sep 2014 @ 9:18pm

    Fair Use...

    ...is the default, copyright is the exception. Too bad that an incredible amount of money is necessary to prove that, over, and over, and over again.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Sep 2014 @ 11:29pm

      Re: Fair Use...

      Sadly, not the case under law. Fair use is not the default, it is a defense. Copyright is the default, and the burden of proof lies on the person claiming fair use as a defense. Ideally it would be the other way around and the burden of proof would rest on the copyright holder to prove that a usage is not fair use, but that is not the reality we live in thanks to current statute.

      reply to this | link to this | view in chronology ]

      • icon
        John William Nelson (profile), 30 Sep 2014 @ 5:49am

        Re: Re: Fair Use...

        Fair use is a limitation on the exclusive rights of copyright holders. It is not an exception to copyright. If you fairly use a copyrighted work, you are not committing infringement but being allowed to do so because of a fair use exception—fair use is non-infringement. See Section 107 of the Copyright Act of 1976.

        Typically (but not always) "defenses" in the litigation process are excuses, justifications, or exceptions. In this sense, many argue fair use is not a classic "defense." Rather, it would be wrapped up inside other classic "defenses" such as "failure to state a claim upon which relief may be granted." (If the facts alleged by the plaintiff show fair use, then they have failed to state a claim for infringement as fair use is not infringement.)

        This is all highly technical legal and legal process jargon. It does not take away Anonymous Coward's correct statement that, in practice, Fair Use is used in a defensive posture and typically must be proven by the Defendant.

        This implies that fair use is a classic defense, as the burden of proof that a defense exists is typically on the person raising that defense. Fair use would seem to fit that bill.

        However, the burden in fair use cases is muddled. For example, the decision in this Sixth Circuit Court of Appeals case, Princeton University Press, et al v. Michigan Document Services, Inc., et al, discusses when the burden of showing the commercial prong of the fair use analysis is on which party—Plaintiff or Defendant.

        It would be nicer if the burden was on the Plaintiff to disprove fair use as part of the claim, rather than having the Defendant having to show it (or various elements of it).

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Anonymous Coward, 30 Sep 2014 @ 8:13am

        Re: Re: Fair Use...

        "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

        To borrow Money on the credit of the United States;

        To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

        To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

        To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

        To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

        To establish Post Offices and post Roads;

        To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;..."


        I have only quoted Article 1 Section 8 to the point necessary, there is more. The relevant point is that Congress shall have the power to, not that they have to exercise that power. They could just as easily remove copyright (except for the MAFIAA fueled maelstrom and a huge increase in sales for companies that sell butthurt cream). Then without copyright there would be use, all of which is fair.

        Ergo, the default.

        While the convoluted machinations of the legal system have gotten to the point where one has to fight for their fair use, all of that could go away, and there would only be use, all of which is fair.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Sep 2014 @ 4:54am

    I did not know one could copyright data. I was under the impression that one could only copyright the presentation of said data.

    Why is a presentation copy required in order to prove the underlying data to be incorrect?

    reply to this | link to this | view in chronology ]

  • icon
    John William Nelson (profile), 30 Sep 2014 @ 5:30am

    Fair Use cites, image or otherwise, still work under Creative Commons licenses

    PLOS needs to get better copyright lawyers.

    Kevin Smith is right. I don't know if he is a lawyer, but he understands the interplay of Fair Use and Creative Commons licensing correctly.

    This is easy-mode copyright law. This is not that hard.

    Then again, I come across attorneys and others all the time who do not understand easy-mode copyright law. So I'm not surprised, either.

    It's like folks think Copyright is this magical set of laws where logic, reason, and common sense do not apply. It does, folks. It does.

    Man up PLOS. Or find better copyright lawyers. Hire me—my hourly rate is probably less than the idiot you have on retainer now.

    reply to this | link to this | view in chronology ]

  • identicon
    Jen Holton, 10 Oct 2014 @ 7:58am

    A further update from Wiley

    Wiley routinely grants permission for reuse of figures for research papers with full attribution to the source including the copyright line as recommended in Creative Commons best practice guidelines on use of third party material in articles using a CC-BY license. We have received and granted a number of these requests and most publishers are happy to follow the creative commons guidelines. However, PLoS insist that they will only reproduce third party material under the terms of a CC-BY license.

    Except where mandated otherwise, we respect our authors right to choose whether to publish in a subscription journal or on an open access basis and, if the latter, which Creative Commons license they wish to use. While most authors are happy for their work to be reused in scholarly research papers, many still choose to protect their work from other forms of without their knowledge or consent.

    In this particular case, since PLoS One are unwilling to adhere to the Creative Commons Guidelines, we have contacted the author of the requested paper and asked if he is willing to allow his figures to be republished by them under a CC-BY license. I am happy to confirm the author has agreed and we have now confirmed with PLoS One that we have granted this permission.

    We are committed to finding flexible solutions to copyright and licensing issues that meet the needs of all stakeholders, and we hope that other publishers will take the same approach.

    reply to this | link to this | view in chronology ]


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