(Free) Creative Commons content on the internet is not so free after all

Abstract

A short guide on how copyright law affects using content from the internet for academic publications and presentations.

Most academics will eventually use a catchy phrase, a good idea or a helpful image from someone else's publication in their articles or presentations. If it is not a major point, it is tempting to use it without attribution or credit. This happened to my own work once, which I realized when I was reviewing a text by another academic prior to publication. Fortunately, we could talk about it and find a solution: in the end, we agreed that I would include references to my own publications whenever I thought it was necessary.

Among colleagues, it is usual and good practice to cite each other's work and it is of course essential in academia to properly cite and reference any texts, ideas, or images from other publications. However, the same is required for content from non‐academic sources, including from the internet. Failing to do so could be a copyright infringement and lead to unpleasant letters from law firms along with substantial costs. There is of course a gray area of what content from the internet can be used without permission and what content would require an explicit permission by the creator. But even when content is supposedly “free” or “in the public domain,” it does not automatically mean that an author or scientist can use it for academic articles or presentations without permission. Authors also often assume that images or texts published under Creative Commons (CC) licenses can be used freely, because they are seemingly not protected by copyright—but that is a misunderstanding. This article explains the pitfalls of copyrights, as well as other implications of copyright law for publications and presentations.

Copyright protection of works

Authors and editors like to add interest and increase readers' attention to their articles by adding images, illustrations, or other visual elements. If the images are not photographs or creations of the author's own making, the question always arises as to who owns the rights to the images and whether these may be used at all. Generally, copyright protection is applied to “works,” that is, personal intellectual creations. This protection applies in particular to texts, representations of an academic or technical nature, such as drawings, tables, plans, and so on, and photographs. Computer programs are also protected by copyright. In Europe, copyright registration is not a prerequisite for protection of a work: any work is protected automatically on creation.

In most cases, the question as to whether texts or images from the internet may be used can be therefore answered with a clear “no,” as these are implicitly protected by copyright; in Germany, for instance, this is regulated by the German Copyright Act (Urheberrechtsgesetz – UrhG). The same applies in most other European countries, as parts of copyright laws have been harmonized through EU directives. Generally, other jurisdictions beyond the EU have similar copyright protections.

Whether a work has actually been created, that is, whether the design has sufficient individuality, is difficult for a layperson to ascertain. Therefore, the first assumption should always be that a creation, a text or an image that you want to include in your publication, is protected. However, the work must have already undergone a certain amount of formation. A mere idea or a new hypothesis is not protected by copyright and can, from a copyright perspective, be adopted by third parties without permission or attribution. If you have a good idea, you would therefore do well to keep this to yourself until you developed it further.

In most cases, the question as to whether texts or images from the internet may be used can be therefore answered with a clear “no,” as these are implicitly protected by copyright…

The protection for a patent lasts 20 years. Trade secrets are protected as long as they are kept secret. Copyrighted works are protected for a much longer time period: for example, 70 years after the death of the creator (post mortem auctoris) in the EU. Internationally, protection lasts at least 50 years after the death of the author (https://wipolex.wipo.int/en/text/283693), but this may differ between jurisdictions. In the USA, Russia, and Australia, for example, copyright protection lasts 70 years after the death of the author and for firms 95 years after publication. In Mexico, copyright protection lasts 100 years after the death of the author. This means that works that are nearly a century old can still be protected especially since it is not the age of the work that matters, but the death of the creator. After this period, protection expires and the works are in the public domain and can be used freely. Nonetheless, it may still be necessary to seek permission from the owner of the works or the museum where it is shown, if it is part of a private museum or gallery collection.

Possible infringements of exploitation rights

Thus, any use of images or texts is hampered by the fact that only the creator has the right to exploit his or her work. This includes the right to print it (= to reproduce) in a periodical, to circulate copies (= to distribute), to perform it (= communicate publicly) or to post it on the internet (= to make it publicly available) (https://curia.europa.eu/juris/document/document.jsf?text=&docid=179101&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1).

But when is a copyright infringed by a lecture? When is a communication public? According to earlier interpretations of copyright laws in Germany, one relevant factor was the size of the audience. Whether the audience members knew each other beforehand and/or the speaker was also a significant factor.

… works that are nearly a century old can still be protected especially since it is not the age of the work that matters, but the death of the creator.

Nowadays, German and European laws take into account case law of the Court of Justice of the European Union (CJEU) in determining whether communication to the public infringes a copyrighted work. A communication is deemed to be public if the user knowingly provides an audience with access to a protected work that it would not otherwise have (act of communication); if it reaches a fairly large number of non‐designated people (for example, CJEU‐C117/15, ECLI:EU:C:2016:379 marginal no. 43 – Reha Training/GEMA, https://curia.europa.eu/juris/document/5document.jsf?text=&docid=179101&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1); and if a new audience is reached by means of another technical process or, if the process is the same, that the work is made available to a new audience (CJEU‐C275/15, ECLI:EU:C:2017:144 marginal no. 39 – ITV Broadcasting, https://curia.europa.eu/juris/document/document.jsf?text=&docid=134604&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1125348). The user targets the audience specifically and the audience must be receptive, that is, they are not merely reached by chance. A purpose of making a profit is another criterion, but not a prerequisite for communication to the public.

The fact that lectures at universities may not pursue any commercial objectives in the narrower sense does not prevent the assumption of communication to the public. Lectures are usually public because they have large numbers of participants. The same is likely true for conferences. In contrast, seminars or project groups attended by small numbers of people are likely to be non‐public. There is no fixed numerical limit; it always depends on the circumstances of the individual case. If a presentation is published on the Internet, this may constitute making works available to the public if the works and performances are accessible to the audiences from places and at times of their choosing. Thus, if someone wanted to include works in his or her own publication or in a lecture or presentation, he or she would have to obtain the rights to use them or would have to invoke an exception (“limitation”).

Permitted uses (“limitations” of copyright)

Academics often quote texts by other academics. According to academic practice, the quotation is placed in quotation marks and the original author and the place where the text appeared first are cited as a reference. From a copyright perspective, this is permissible in Europe and the USA as a quotation of this kind meets not only academic requirements but also copyright requirements. At the same time, it is important that the length of the quotation is covered by the purpose. It is not permissible to reproduce an entire book and justify this by putting quotation marks at the beginning and end of the quotation. The personal copying limitation also allows works to be copied in analogue form on paper if they are small parts of a released work or articles published in newspapers or periodicals.

In 2018, considerable changes occurred in respect to academic (scientific) freedom. The provisions in the German law specified and expanded the requirements for permitted academic use. Accordingly, 75% of a work may be copied for research and 15% for lectures. Images and articles from academic journals may be reproduced, distributed, and made publicly available. The explicit stating of the permissible extent of copies has increased legal certainty.

The fact that lectures at universities may not pursue any commercial objectives in the narrower sense does not prevent the assumption of communication to the public.

Depending on which right of exploitation is affected, different exceptions or permissions (limitations) apply. A presentation at a conference, which may count as public communication, has different limitations than publication in a periodical (reproduction and distribution). For example, public communication of a work is under narrowly defined conditions permitted in Germany, namely if the communication does not serve any profit‐making purpose of the organizer, if participants are admitted free of charge, and if the performers do not receive a fee. It should be noted, however, that making a work available to the public, such as posting it on the internet, is not permitted.

As a rule, the use of text passages in specialist articles should be covered by the quotation limitation. Researchers can copy texts for their research and lecturers can use them—copy, distribute, and make them publicly available—to a certain extent for teaching. In particular, lectures and presentations at larger events are likely to constitute a communication of works to the public. In that case, the rights—and therefore the consent of the creator (for example, a license)—should be obtained before use.

Consent of the author

If none of the legal exceptions apply, the creator's consent to use his or her work is needed. The granting of consent, in some cases against remuneration, is often regulated by a contract. Colloquially, this is referred to as a “license,” by which the creator gives the user the permission to use the work under the conditions specified in the license.

As explained above, images or software are protected by copyright insofar as they are the author's own intellectual creations. If you use someone else's image in violation of the terms of the license, the copyright holder may be entitled to damages and to compensation for legal fees. Online resources, such as Flickr, Wikimedia, or GitHub, offer copyrighted works under very broad licensing conditions that are favorable to users. Since copyright is not transferable as understood in continental Europe, its protection cannot be completely waived, but these online resources, with the implicit or explicit approval by the creator, grant licenses for further use of copyrighted works.

Thus, for example, images from Flickr can be offered under a Creative Commons (CC) license. Only works under “public domain dedication” (CC0) allow use without imposing further requirements (Fig 1). Not even the naming of the author is required under the terms. Also, the author will not take action against the use of his work by third parties. Thus, the condition is very close to as if the work were in the public domain. Even so, users should still carefully check the details. If, for instance, US federal government material is not copyrighted under federal domestic law and is therefore in the US public domain, this does not automatically mean that it can be used in other jurisdictions.

Figure 1. Creative Commons Licensing Spectrum.

Left side indicates the use‐cases allowed, right side the license components. The dark green area indicates Free Cultural Works compatible licenses, the two green areas compatibility with remixing. The bright green area is similar to the “fair use” concept, and the yellow area to the “freeware” concept. Wikimedia/Shaddim under CC BY 4.0, https://creativecommons.org/licenses/by/4.0/.

All other CC licenses require at least giving attribution to the creator (CC BY). In addition, it may require publishing your work under the same license if you adapt someone else's work (CC BY‐SA: “share alike”). For example, if a photo that was made originally available under a CC BY‐SA license is edited, the editor must also offer the new image under this license. This is done by specifying the license under which you want to offer your work and providing a link to the license text on https://creativecommons.org. The abbreviation ND for “no derivatives or adaptations” (CC BY‐ND) indicates that adaptations are not permitted.

It is also important to clarify whether commercial use is permitted under the licenses discussed above. The CC BY‐NC license (NC stands for “noncommercial”) does not permit use primarily for or directed towards commercial advantage or monetary compensation (https://creativecommons.org/licenses.org/licenses/by/4.0/legalcode). The delineation of when a use is commercial or non‐commercial is difficult. Internet sites frequently generate revenue through advertising, for example (Till Kreutzer, Open Content – Praxisleitfaden (p. 51)) (https://creativecommons.org/licenses/by/4.0/legalcode). In the case of natural persons, it is more likely that the use is personal and not commercial. However, this must be considered on a case‐by‐case basis. Generally, the use of works as a private person for the purpose of information or at events free of charge should probably be allowed.

Before using an image in a presentation or publication, it is therefore crucial to check which license applies to the image. In the example of Fig 1, the CC BY license in version 4.0 was used. The next step is to meticulously meet the requirements of the license. The requirements of a CC‐BY license, for instance, go beyond the usual level of information that is otherwise required for quotes. As a rule, a link must be provided to the licensed work itself, to the extent reasonably practicable. A reference or credit line is required for online publication, but not for analogue publications. This link must specify the copyright notice, creator, reference to the license with link to the license, if applicable, link to the accessed work, if practicable, disclaimer of warranties, if applicable, and indication if the material was modified.

The requirements may vary in individual cases and depend, among other things, on the medium of the publication. There are generators that automatically compile the necessary information when you provide the link to the work and answer a few questions (for instance, https://lizenzhinweisgenerator.de/?lang=en). Generally, CC‐licensed images can be used for the use of images in publications, if the requirements of the licenses are strictly observed.

Consent of persons depicted in photos (right of personality)

Even the use of photographs that are of the author's own making does not protect the author from legal pitfalls—despite the author being the creator of the works. In this case, the right of personality of the persons depicted must be observed. If individuals are identifiable and not merely depicted as part of a larger group at gatherings or as an accessory within a landscape or other location, all person(s) depicted must consent before publication. If the person is already deceased, it depends—under German law—on the will of the relatives until 10 years after death. The personal rights of the persons depicted are thus just as important as the copyright.

To explain the interplay between copyrights and the right of privacy: If a publisher wants to print the author's photo next to a scientific article, the publisher needs both the consent of the person depicted and the copyright usage rights from the photographer. These copyright usage rights are not necessarily automatically granted by photographers.

Conclusion

Photos, graphics, and texts are in many cases protected by copyright and the rights belong to the creator. There are legally permitted uses, such as the right to quote, but any other uses beyond these require that the creator must consent to the use of the photos, graphics or texts before they are used. This consent can be obtained contractually by means of a license.

If works are to be copied from the internet, for instance from Flickr or Wikimedia, the user must check carefully whether the license granted is suitable for the intended use, such as commercial versus non‐commercial. In addition, further information is required beyond what is usually given for a quotation: the license and, if applicable, a link to the license text.

If a creator uses photographs of his or her own making, copyright is not an issue. However, the consent of any persons recognizably on the photos should be obtained before publication in order to rule out a violation of their rights of personality.

Disclosure and competing interests statement

The author Dr. Verena Roder‐Hießerich is a lawyer at Flick Gocke Schaumburg Rechtsanwälte Wirtschaftsprüfer Steuerberater Partnerschaft mbB in Bonn (Germany) and advises in corporate and intellectual property law; she is a member of GRUR – German Association for the Protection of Intellectual Property.

Supporting information

Review Process File

EMBO reports (2023) 24: e58419