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  One of the publishers of those previous papers — Wiley — was willing to give permission for reuse but not for publication under the Creative Commons Attribution (CC BY) license that PLoS One uses.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.

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