The awkward copyright collision of Fair Use and Creative Commons

<p><pre><code> &gt; Based on Journal X’s practices, my photographs would be &gt; isolated from the paper, uploaded to Wikimedia Commons, &gt; and available for corporations who normally pay for my &gt; images to get them as freebies. </code></pre> As noted in the article, the journal doesn&#x27;t have the right to change the license on someone else&#x27;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 &quot;relicense&quot; it, and sometimes even several back-and-forth emails are insufficient to convince them that copyright licenses aren&#x27;t mutable by anyone but the owner.<p>For the author of this piece, I think the solution is relatively straightforward:<p>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&#x27;s software is unable to handle these cases separately, then the software should be corrected.<p>2. Ask Wikimedia kindly to remove the author&#x27;s photos from their collection, or at least correct the license metadata. I&#x27;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.<p>3. If someone uses the author&#x27;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&#x27;s RIAA-engorged penalties should bring them around. If nothing else, they will likely become much stricter about validating ownership before using a photo.

Let me see if I&#x27;ve got this right.<p>The journal wants to ensure that anyone can read the articles <i>and all supporting information</i> 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&#x27;s pictures and requests the permission. The photographer doesn&#x27;t want to allow that. He (the photographer) suggests &quot;I&#x27;d be happy to let you could use it in the article as long as you won&#x27;t let anyone <i>else</i> copy it&quot;, but that&#x27;s not OK with the journal. So the picture doesn&#x27;t get used.<p>All sounds right to me. That&#x27;s how it&#x27;s supposed to work.

This doesn&#x27;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.

This is almost identical to the issue of open-source license conflicts, where everyone is OK with their code being freely downloaded &#x2F; compiled &#x2F; modified by users, but not necessarily with the terms under which it can then be redistributed by those users.

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.

There is no awkward collision.<p>This is working exactly as it is supposed to.

author wants to &quot;have his cake and eat it too&quot;, and argues from a position of untenable entitlement. <i>As a private photographer, I cannot afford it.</i> But you, sir, are not <i>entitled</i> to have someone distribute your work on your behalf.<p>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).

For me, I&#x27;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.<p>Greetings. -- Carlos

&gt; Printing images as natural history data in a scholarly publication should be considered Fair Use.<p>The author&#x27;s entire argument rests on this single sentence. And, so far as I know, it is incorrect.<p>[I <i>think</i> that by &quot;should be&quot; the author is really saying &quot;is&quot; in a flowery way: otherwise his entire article is a nonsense hypothetical rather than, as he says, something which happened in reality.]

This phenomenon of a &quot;permissions mismatch&quot; is common enough with various open-source software licenses that it has its own name: <i>license incompatibility</i> [1].<p>[1] <a href="http://en.wikipedia.org/wiki/License_compatibility" rel="nofollow">http:&#x2F;&#x2F;en.wikipedia.org&#x2F;wiki&#x2F;License_compatibility</a>

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&#x27;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)].<p>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.

There is no &quot;collision&quot; 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&#x27;s the whole thing. The fact that fair use exists has nothing to do with this.

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

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.