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A few months ago an Elsevier representative contacted me asking for permission to reproduce one of my thesis figures in one of their books. Since this figure is only in my thesis (introduction section) and is not published elsewhere, I retain full copyright.

Because I am truly concerned about the negative effect of Elsevier policies on science at large, I am boycotting Elsevier. I considered not granting them permission, however I thought that this would mostly affect the authors of the book and have very little effect on Elsevier. I asked my Facebook contacts what I should do, and one of them proposed a very nice solution. Basically, he suggested that I publish the work under some terms so that everyone, and not only Elsevier, can be directed to the specific conditions under which this work can be reused. So I posted my figure on Zenodo (this actually makes sense because I have been asked many times for permission to reproduce this figure - mind you, that's the only reason why my thesis gets cited at all).

I replied to the Elsevier representative referring him to the Zenodo entry, and specifically letting him know that the modified version of the figure that they want to use does not comply with my terms (since it removes the text stating I own the copyright).

Last week, I noticed that a preview of the book is available in Google Books. To my surprise, I noticed that the version of the figure (fig. 11.1) that they ended up using does not comply with the terms I communicated to the Elsevier representative. What can/should I do about this?

Edit

I contacted the Elsevier representative who apologized and corrected the image. The Google Books link above now shows the copyright notice as it should (hopefully this settles the nonsensical debate initiated by @user71659 depicting increasingly weird scenarios in which Elsevier had recompiled the figure from scratch).

  • 2
    The first question would be if your diagram is copyright protected at all in the countries where that book is sold. If some work is protected by copyright in the USA (for example) it does not mean that the work is also protected in Russia. In this case it would be legal to modify the diagram and sell the book in Russia. (I've heard that musicians had this problem some years ago when you could legally download copied music from Russian servers...) – Martin Rosenau Oct 6 '18 at 11:51
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    @MartinRosenau Not sure where you read this, but I don't think it works that way. Russia is under the Berne convention, so copyright protection is automatic and does not require a registration. – Federico Poloni Oct 6 '18 at 14:29
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    @Miguel That's the exact same figure you linked to! You haven't shown anything different. If the data is not copyrightable, there is no problem extracting it from your figure. You can't copyright the fact that 530 nm = green. – user71659 Oct 6 '18 at 16:42
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    @Miguel You haven't shown anything. They asked for permission. You put conditions. Assume they didn't agree with them, so they recreated the plot using elements that were uncopyrightable. How did this scenario not happen? Again, you need to get a lawyer to explain to you whether copyright infringement did actually happen, because what you think is copyrightable may not be. – user71659 Oct 6 '18 at 16:52
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    @FedericoPoloni It was at the end of the 1990: According to Russian Laws artistic work in other languages than Russian was not seen as "artistic work" - and therefore not copyrighted. There were music download services that provided English rock music for download... – Martin Rosenau Oct 6 '18 at 18:28
39

You attempted to use a crayon license, that is, modify the terms of an existing well-established license to better suit your needs.

This is frowned upon, because it can cause legal complications. In particular, the license CC-BY-NC 4.0 license that you attached to your work states

The Licensor shall not be bound by any additional or different terms or conditions communicated by You unless expressly agreed.

or, in other words (human-readable version on their website)

No additional restrictions — You may not apply legal terms or technological measures that legally restrict others from doing anything the license permits.

The CC folks officially forbid you from using that name and logo if you do modify their terms:

Can I change the license terms or conditions?

Yes—but if you change the terms and conditions of any Creative Commons license, you must no longer call, label, or describe the license as a “Creative Commons” or “CC” license, nor can you use the Creative Commons logos, buttons, or other trademarks in connection with the modified license or your materials.

So it is going to be difficult to argue for your additional restrictions in court. They are likely to be void. For legal purposes, we can assume that your work is licensed under an unmodified CC-BY-NC 4.0.

Notice 1 still stands, because the CC license allows you to specify your preferred name and wording for the attribution (and it seems to me that they complied with it in the book). Notice 2 is void. Notice 3 still stands, because the license only covers non-commercial use.

So Elsevier is infringing it because they are using it in a commercial work, right? In principle yes, but you wrote that you had an exchange with them and essentially authorized them to use it in the book under the terms listed in Zenodo. We would have to review your full conversation with Elsevier to see what you really wrote to them.

Disclaimer: IANAL.

  • 1
    Thanks, this is interesting. I explicitly told the guy that they should comply with Notice 2. I should also add I have exactly zero intention to take this to court. I'm just wondering if I can annoy them (Elsevier) a bit without annoying the authors too much. – Miguel Oct 6 '18 at 7:29
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    Exact wording that I used: "At the moment, as I can see from the edited version of the figure which you attached to your email, you do not comply with "copyright notice 2". You are free to use the figure after you fix this." – Miguel Oct 6 '18 at 7:34
  • I fixed "notice 2". Thanks for your insight. – Miguel Oct 6 '18 at 7:40
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    @BartoszKP Would you say that strike is unprofessional? Taking (legal) action against corporations with abusive policies has been historically a driving force in gaining rights and changing some of those policies. – Miguel Oct 8 '18 at 9:26
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    @BartoszKP Well, if it wasn't obvious, my "intention" is for them to take notice that they should not ignore authors rights. You must live inside of my head to know my intentions better than I do. – Miguel Oct 8 '18 at 11:29
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If you think Elsevier is infringing your copyright, then you are infringing on others (1, 2, 3, 4)

That chart is very standard. The information itself is uncopyrightable. The only thing that stands out is the rainbow spectrum, but even then you weren't the first to draw it like that, see this book published 2006: 5.

I'm sure the people working in the copyright clearance department of Elsevier have far more experience than you, or nearly everybody here, in these matters, who like me, isn't a lawyer.

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    Elsevier is infringing my copyright because they modified my creation directly. I generated the graph from scratch. Your answer seems contradictory to me. One thing is the information and another the media created. I think you're mixing things up. As a matter of fact the way that band gap interpolation is done differs from previous work, but that's another thing. – Miguel Oct 6 '18 at 10:25
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    @Miguel not every work is protected by copyright. There's always some hurdle like creative content, originality, etc. Which varies by jurisdiction to some extent. Or in short: Copyright protection might not apply here. – DonQuiKong Oct 6 '18 at 11:41
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    @DonQuiKong We are not talking about ideas here. What Elsevier did was, literally, crop my image file and erase a copyright notice I put there. This is why this answer is missing the point. – Miguel Oct 6 '18 at 13:37
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    @DonQuiKong No, what this answer says is not that "not everything is protected by copyright"; what is says is that my work cannot possibly be protected by copyright because the original idea belongs to someone else. To me, this seems like a logical fallacy, simply because I'm not claiming I own copyright on the idea, but on the work itself. Your argument is separate from the tenet of the answer. – Miguel Oct 6 '18 at 14:42
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    Looking at the two plots, I would bet that Elsevier have not modified your creation directly - I think they have recreated it from scratch, as you did. Note the different aspect ratio, the broken x-axis, the different font, etc. – Flyto Oct 6 '18 at 15:22
5

Up-front: I am not a lawyer.

This is all complicated somewhat by both the "addon" clauses that you've tried to include, and the conversations with Elsevier in which it sounds as though you may have given them permission.

Every CC license requires users to,

attribute the creator of licensed material, unless the creator has waived that requirement, not supplied a name, or asked that her name be removed. Additionally, you must retain a copyright notice, a link to the license (or to the deed), a license notice, a notice about the disclaimer of warranties, and a URI if reasonable. (from https://creativecommons.org/faq/)

Elsevier have attributed the creator, but they have not shown any copyright notice, have not shown that the figure is CC-licensed, or provided any link. A casual reader of this book would assume that Elsevier owned the copyright on this figure, which is not correct. On this basis, then, they are in breach of the license and hence have no right to use it.

However, if this were simply the CC-BY-NC license that you applied to the work, they'd be in breach anyway because they're a commercial organisation. So the question is whether they are using the figure incorrectly under that CC license, or whether they are using it under another license or permission that you have (deliberately or otherwise) granted them in email. Or whether they are breaching copyright.

That, I fear, may be one for the lawyers.

[1] They've recreated it, not reproduced it, with some differences - but I'm fairly sure that that makes no difference.

2

I know you wanted to avoid this but you really should consult a lawyer.

Aren't there any free or cheap consultations available where you live?

From the back and forth here with others it is obvious that we can't help you properly.

Copyright law is a giant, complex minefield best dealt with by professionals.
(expecially if you want it resolved legally binding and hopefully to your advantage if possible)

  • Guess why it is a minefield? Because a lot of people want to find ways and means to do dishonest things, especially due to money. After all, if you can sneak in the fake journal Chaos, Solitons & Fractals into a bundle so that you can charge more, infringing copyright is much easier since you know that small researchers don't have the money to fight back. – user21820 Oct 7 '18 at 9:47
  • don't forget the patent trolls. they need to feed families too (; – DigitalBlade969 Oct 7 '18 at 15:36
  • No don't consult a lawyer. It's a waste of time and money. The image has been redrawn and Elsevier is far better equipped to deal with that issue than virtually anyone else. Just go on with your life. – Cape Code Oct 8 '18 at 9:00

protected by Alexandros Oct 8 '18 at 9:42

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