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