Are fair use and open access incompatible?

There has been a spirited discussion on a list to which I subscribe about the plight of this graduate student who is trying to publish an article that critiques a previously published work.  I’ll go into details below, but I want to start by noting that during that discussion, my colleague Laura Quilter from the University of Massachusetts, Amherst captured the nub of the problem with this phrase: “the incompatibility of fair use with the policies of open content publishers.”  Laura’s phrase is carefully worded; the problem we need to unpack here is about the policies of open content publishers, and the solution is to help them understand that fair use and open licensing are NOT incompatible.

Briefly, the situation is this.  An author has written a paper that critiques previous work, specifically about the existence, or not, of “striped nanoparticles.”  In order to assess and refute evidence cited in some earlier papers, the author wants to reproduce some figures from those earlier publications and compare them to imagery from his own research.  He has encountered two obstacles that we should consider.  First, his article was rejected by some traditional publications because it was not groundbreaking; it merely reinterpreted and critiqued previously published evidence.  Then, when it was accepted by PLoS One, he encountered a copyright difficulty.  PLoS requires permission for all material not created by the author(s) of papers they publish.  One of the publishers of those previous papers — Wiley — was willing to give permission for reuse but not for publication under the Creative Commons Attribution (CC BY) license that PLoS One uses.  Wiley apparently told the author that “We are happy to grant permission to reproduce our content in your article, but are unable to change its copyright status.”

It is easy to see the problem that PLoS faces here.  Once the article is published under a CC license, it seems that there is little control over downstream uses.  Even if the initial use of the Wiley content is fair use — and of course it probably is — how can we ensure that all the downstream uses are fair use, especially since the license permits more types of reuse than fair use does?  Isn’t this why fair use and open licensing are incompatible?

But this may be an overly simplistic view of the situation.  Indeed, I think this researcher is caught up in a net of simplified views of copyright and scholarly publication that creates an untenable and unnecessary dilemma.  If we start by looking at where each player in this controversy has gone wrong, we may get to a potential solution.

Let’s start with Wiley.  Are they in the wrong here in any way?  I think they are.  It is nice that they are willing to grant permission in a general way, but they are probably wrong, or disingenuous, to say that they are “unable” to change the copyright status of the material.  Under normal agreements, Wiley now owns the copyright in the previously published figures, so they are perfectly able to permit their incorporation into a CC licensed article.  They can “change the copyright status” (if that is really what is involved) if they want to; they simply do not want to.  The author believes this is a deliberate move to stifle his criticism, although it is equally possible that it is just normal publishing myopia about copyright.

There is also some blame here for the system of scholarly publishing.  The roadblock encountered with traditional publishers — that they do not want articles that are “derivative” from prior work — is common; most scientists have encountered it.  In order to generate high impact factors, journals want new, exciting and sexy discoveries, not ongoing discussions that pick apart and evaluate previously announced discoveries.  We have found striped nanoparticles!  Don’t dispute the discovery, just move on to the next big announcement.

This attitude, of course, is antithetical to how science works.  All knowledge, in fact, is incremental, building on what has gone before and subject to correction, addition and even rejection by later research.  The standard of review applied by the big and famous scientific journals, which is based on commercial rather than scholarly needs, actually cuts against the progress of science.  On the other hand, the review standard applied by PLoS One — which is focused on scientific validity rather than making a big splash, and under which the article in question was apparently accepted — better serves the scientific enterprise.

But this does not let PLoS off the hook in this particular situation.  It is their policies, which draw a too-sharp line between copyright protection and open content, that have created a problem that need not exist.

First, we should recognize that the use the author wants to make of previously published figures is almost certainly fair use.  He is drawing small excerpts from several published articles in order to compare and critique as part of his own scholarly argument.  This is what fair use exists to allow.  It is nice that Wiley and others will grant permission for the use, but their OK is not needed here.

Second, 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.

Next, we can look at the CC licenses themselves to see how downstream uses can be handled.  If we read the text of the Creative Commons license “deed” carefully, we find these lines:

Licensors should clearly mark any material not subject to the license. This includes other CC-licensed material, or material used under an exception or limitation to copyright.

Obviously, the CC licenses themselves expect that not everything that is part of a licensed work will be equally subject to the license; they realize that authors will — indeed must — rely on fair use as one of those exceptions and limitations to copyright.  How should licensors mark such material?  The most usual way is a footnote, of course.  But a caption to the figure that indicates the source of the different pieces and even says that copyrights may be held by the respective publishers would work as well.

Finally, let’s acknowledge that there is nothing new or unusual in the procedure recommended above. Traditional publishers have done things this way for years.  When Wiley publishes an article or a textbook that asserts that they, Wiley, own the copyright, they are not asserting that they own copyright over the text of every quotation or the images used by permission as illustrations.  Such incorporated material remains in the hands of the original rights holder, even after it is included in the new work under fair use or a grant of permission.  The copyright in the new work applies to what is new, and downstream users are expected to understand this.  Likewise, the partial waiver of copyright accomplished by a CC license applies to what is new in the licensed work, not to material that is legally drawn from earlier works.

So 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.  And I think we can learn two lessons from this situation:

  1. The standard of review applied by open content publishers is more supportive of the true values of science than that used by traditional publishers.  Over reliance on impact factor hurts scholarship in many ways, but one of them is by pushing publishers to focus on the next big thing instead of the ongoing scientific conversation that is the core of scholarship.  The movement toward open access has given us a chance to reverse that unfortunate emphasis.
  2. Open content licenses should not be seen as all-or-nothing affairs, which must either apply to every word and image in a work or not be used at all.  To take this stance is to introduce rigidity that has never been a part of our copyright system or of traditional publishing.  It would be a shame if excessive enthusiasm for openness were allowed to actually undermine the value of research by making the scientific conversation, with all its reliance on what has gone before, more difficult.

5 thoughts on “Are fair use and open access incompatible?”

  1. Thank you for writing about my post. I do, however, want to make one correction to the story. Wiley did not tell me “We are happy to grant permission to reproduce our content in your article, but are unable to change its copyright status.” until after the blog post went online. All communication was done through PLoS who simply told us that Wiley have refused us permission to use the figure. I do not know if they orignially suggested marked use to PLoS. If they had suggested the marked use in the paper to me I would have been happy with this. I am not an expert in the CC-BY licence (I am a scientist not a lawyer) and I belived what I was told by PLoS. Hopefully, with the attention this is all getting we will come to a conclusion which everyone is happy with.

  2. Publishers cannot be trusted to administer rights–even OA ones. Wiley & PLOS have created an issue where none need exist. Both are denying validity of fair use–Wiley by enforcing copyright and PLOS by requiring permission. Reproduction for purposes of comment and criticism is not infringement, but even OA publishers refuse to recognize rights existing under fair use.

  3. Kevin,
    I don’t think it fair to dismiss the publisher’s censorship merely as “normal publishing myopia”. There are many clear demonstrations of copyright as censorship in publishing and the dissemination of creative works. Look no further the history of copyright to see this has a long history, which you are no doubt aware of:

    I’m concerned about your appeal to tradition (“never been a part of our copyright system or of traditional publishing”). I am always careful when someone uses the word “our”…whose exactly?

    You suggest that “excessive enthusiasm” for openness could undermine the value of research. Excessive enthusiasm for openness has made some great contributions to society (consider the Free Software Foundation, there is certainly a considerable amount of software from the FSF that enables me to post this message on this blog).

    Many successful ventures have begun by disregarding copyright (consider the amount of copyrighted material that was/is on youtube). Musicians, comedians, fashion designers routinely copy each other the implicit open licenses (copyright infringement != plagiarism)

    Questioning the premise of copyright, and it’s costs and benefits to society is something we all should do.

  4. Very interesting and informative post, plus excellent links from @maneesh – I particularly liked the quote form Henry VIII
    “”sondry contentious and sinyster opiniones, have by wrong teachynge and naughtye bokes increaced and growen within this his realme of England”, which goes to one of the hearts of censorship.
    There are, I suspect, various strands here. One may be PLOSone delaying publication to try to get a response from the authors of the critiqued work (though, given their two dozen papers on the subject, which, as they use different techniques demonstrate that beyond the glossy cartoon there are no stripes, they hardly need a further platform to dig the hole deeper). Another may be a SNAFU at Wiley and/or PLOS, not helped by the fact they sit on different sides of the fence with respect to open access. There are probably other factors too. I would note that both the Royal Society of Chemistry (who have published one “stripy” paper) and NPG, who published the first stripy paper gave the OK, though I think the latter made the decision after Julian’s post went up.
    The outcome is, of course censorship, be it wilful or not and evidence, as ever, that community pressure relieves censorship. Happily the paper is up as a preprint – i am curious as to the status of the preprint with respect to open access and fair use, etc.?

  5. Below is an update.
    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.

    Jen Holton
    Director of Global Rights and Permissions, Wiley

Comments are closed.