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I'm interested in the legal status of a published academic open access product. Is it considered a commercial product or not, even if published by a company that usually earns money (in one way or another) with academic publications?

I'm asking regarding the use of images that are free to use in a noncommercial context but would not be available for commercial products.

I'm aware that it would be appropiate to contact the creators of the images and get relevant permissions but specifically I would like to know what the legal status of an open access academic publication is. Is it still considered to be a commercial product?

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    Well, what about closed-access journals? They are almost certainly for-profit (or at least they earn a profit off of the contributions). Yet it would be considered fair use to use a non-commercial restricted image in such a publication, so long as its source is referenced. – Jonathan Landrum Jul 7 '16 at 22:05
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    As the reading of "non-commercial only" images is that they cannot be used in blog posts on ad-supported websites, I'd recommend being careful. This does not apply to fair use of the image (e.g. for scientific criticism as opposed to using the image for illustration of something) which would not be a use of the non-commercial license but of a "fair use for scientific purposes" right. My guess is that the open access product will be commercial like the openly accessible blog on the web site of a company is. – cbeleites supports Monica Jul 8 '16 at 21:00
  • The level of ambiguity around what "non-commercial" means in various contexts is so broad that I would always recommend asking the creators/rightsholders in this situation. – Andrew Jul 9 '16 at 2:29
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Qualifying a paper as open-access only indicates that the paper can be legally accessed free of charge by anyone. It does not make any further implication regarding its license. E.g., some license will allow the use of images in a commercial context, some will not. More details: Gratis versus libre.

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