11 November 2016

Copyright v. Biology

When do copyright laws prohibit the use of third-party images without express permission of the author, in furtherance of biodiversity and taxonomy research?

A new paper at bioXriv explores the issue. The conclusion they reach is largely right, but probably for the wrong reasons.

In my opinion as a lawyer who sometimes deals with copyright law, the article takes a more expansive view of the scope of what is copyrightable than the law supports. The standardized presentation and "lack of creativity" defense is quite narrow.  For example, even photos taken on an automated basis or by the monkey subject of the picture have been held to be protected by copyright. The "lack of creativity" exception tends to apply to documents like directories and indexes.

There is a fair argument that there is an implied license to publish an image in a scholarly taxonomic publication granted to other persons engaged in taxonomy research that can be inferred from the customs and practice of the discipline. The analogy in area of real property law would be the implied license granted to postal workers, delivery persons, solicitors and other people who would like to talk to you to enter onto your front walk to your front door to leave a package or knock and request entry, even in the absence of an express grant of permission to do so.

Similarly, the scientific research purpose of the investigators could overcome this problem with a fair use defense which is read broadly in cases of legitimate scientific research, and in which similar arguments to those for an implied license could be considered. The fact that a journal's economic profit is not a major motivation for publishing scholarly work, and that citation tends to increase rather than decrease the value of scholarly work could also enter into consideration.

The abstract and citation to the article are as follows:
Taxonomy is the discipline responsible for charting the world's organismic diversity, understanding ancestor/descendant relationships, and organizing all species according to a unified taxonomic classification system. Taxonomists document the attributes (characters) of organisms, with emphasis on those can be used to distinguish species from each other. Character information is compiled in the scientific literature as text, tables, and images. The information is presented according to conventions that vary among taxonomic domains; such conventions facilitate comparison among similar species, even when descriptions are published by different authors. 
There is considerable uncertainty within the taxonomic community as to how to re-use images that were included in taxonomic publications, especially in regard to whether copyright applies. This article deals with the principles and application of copyright law, database protection, and protection against unfair competition, as applied to images. 
We conclude that copyright does not apply to most images in taxonomic literature because they are presented in a standardized way and lack the creativity that is required to qualify as 'copyrightable works'. There are exceptions, such as wildlife photographs, drawings and artwork produced in a distinctive individual form and intended for other than comparative purposes (such as visual art). 
Further exceptions may apply to collections of images that qualify as a database in the sense of European database protection law. In a few European countries, there is legal protection for photographs that do not qualify as works in the usual sense of copyright. 
It follows that most images found in taxonomic literature can be re-used for research or many other purposes without seeking permission, regardless of any copyright declaration. In observance of ethical and scholarly standards, re-users are expected to cite the author and original source of any image that they use.
Willi Egloff, et al., "Copyright and the Use of Images as Biodiversity Data" (pre-print posted November 11, 2016). doi: http://dx.doi.org/10.1101/087015

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