from Hacker News

The awkward copyright collision of Fair Use and Creative Commons

by elehack on 1/19/14, 7:42 PM with 28 comments

• by jmillikin on 1/19/14, 8:33 PM

    > 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.

• by mcherm on 1/20/14, 1:15 AM

  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.

• by stormbrew on 1/19/14, 8:28 PM

  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.

• by fiatmoney on 1/19/14, 8:30 PM

  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.

• by vilhelm_s on 1/19/14, 11:27 PM

  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.

• by Kim_Bruning on 1/19/14, 10:21 PM

  There is no awkward collision.

  This is working exactly as it is supposed to.

• by dnautics on 1/20/14, 5:28 AM

  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).

• by carlosantelo on 1/19/14, 10:19 PM

  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

• by SeanLuke on 1/20/14, 2:28 AM

  > 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.]

• by csense on 1/20/14, 1:56 AM

  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

• by diminish on 1/19/14, 9:33 PM

  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.

• by upofadown on 1/20/14, 1:23 PM

  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.

• by silveira on 1/20/14, 3:09 AM

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

• by taproot on 1/19/14, 9:00 PM

  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.