When publishing a scientific work or a textbook in a reputable publishing house, the final steps before publication usually involve signing over exclusive copyrights in a standardized manner. A standard clause in such copyright forms is that the author has to warrant that she either is the sole owner of the copyright in the contribution or has obtained the permission of the owners of the copyright (see Figure below, an excerpt of such a standard copyright form).
While publishers thereby shift all responsibility with regard to rights clearing issues over to their authors, they regularly devote particular scrutiny to figures and tables. For any such figures and tables authors have to provide explicit permission statements. Even though including a properly referenced figure or table from another work in a scientific work or textbook could be – and probably often is – fair use (US copyright) or might be justified by exceptions for quotation, research and education (EU copyright), publishers refuse to take any risk that could be related to such a legal standpoint. Such a restrictive interpretation and enactment of copyright by publishers not only places unnecessary burdens on authors but also further worsens practicability of current copyright in academic contexts.
However, as I have learned in the course of contributing to a textbook with case studies on innovation and project networks, publishers might even decide to reject figures where permission is explicitly granted in form of a standardized Creative Commons license. In this particular case, in a spreadsheet entitled “permission queries”, the publisher listed all exhibits that were considered in any way problematic.
In one chapter dealing with the Rana Plaza Collapse, the author had included a picture of the collapsed building that had been published on Flickr under a Creative Commons (CC) Attribution (BY) ShareAlike (SA) 2.0 license and is also featured in the Wikipedia article on the incident.
Creative Commons licenses are a standardized way to grant certain rights to third parties that would otherways be reserved or had to be cleared. Reducing the need to individually clear rights is one of the main reasons why Creative Commons licenses had been developed in the first place (see, for example, Dobusch and Quack 2008); by reducing legal transaction costs, Creative Commons wants to foster sharing and re-using copyrighted works. However, the publisher’s comment in the permission query list suggested otherwise:
We can’t reproduce items under creative commons as it stipulates that we can’t copyright the material – unfortunately we will need to remove this photograph
This statement is breathtakingly flawed on many levels. The publisher does not need to “copyright the material”. What it needs is the permission to reprint the work in a commercial setting. In the case at hand, the Creative Commons license explicitly grants commercial use. Already the license deed states that anyone is free to share and adapt the work “for any purpose, even commercially”.
And while the ShareAlike clause of the license requires that “[i]f you remix, transform, or build upon the material, you must distribute your contributions under the same license as the original”, this does not impede the use of the work in a book or an article. The license text is very explicit and clear in this regard, stating that it
does not require the Collective Work apart from the Work itself to be made subject to the terms of this License.
And “Collective Work” is defined in the license as follows:
“Collective Work” means a work, such as a periodical issue, anthology or encyclopedia, in which the Work in its entirety in unmodified form, along with a number of other contributions, constituting separate and independent works in themselves, are assembled into a collective whole. A work that constitutes a Collective Work will not be considered a Derivative Work (as defined below) for the purposes of this License.
Since the comment by the publisher is presented as standard procedure, one can only imagine how many authors are regularly misled about the legal implications of Creative Commons licenses. I find this particularly problematic when – as in our case – such wrongful legal claims are provided by a large and reputable publishing house and its legal department.
In my chapter on Wikipedia in the same volume, a screenshot of Wikipedia’s predecessor Nupedia licensed under CC-BY-SA was also rejected because the publisher claimed that it didn’t have the permission to reprint it (in this case even without giving an explanation).
Independent of how this plays out in this particular case – for now, we plan to insist on including the respective figures in the volume – the overall point remains: the overly restrictive application of copyright law by powerful publishers is a signature example for permission culture and makes an already deficient copyright regime even worse. At the same time, this practice shows how important it is to strengthen exceptions and limitations to copyright with regard to quotations, research and edcuation. And it is one of the main reasons why I prefer to publish in open access outlets, which embrace instead of misread Creative Commons licenses.