Copyright: promoting the Progress of Science and useful Arts by preventing access to 105-year-old quarry maps
October 11, 2015
In my recent preprint on the incompleteness and distortion of sauropod neck specimens, I discuss three well-known sauropod specimens in detail, and show that they are not as well known as we think they are. One of them is the Giraffatitan brancai lectotype MB.R.2181 (more widely known by its older designation HMN SII), the specimen that provides the bulk of the mighty mounted skeleton in Berlin.
That photo is from this post, which is why it’s disfigured by red arrows pointing at its epipophyses. But the vertebra in question — the eighth cervical of MB.R.2181 — is a very old friend: in fact, it was the subject of the first ever SV-POW! post, back in 2007.
In the reprint, to help make the point that this specimen was found extremely disarticulated, I reproduce Heinrich (1999:figure 16), which is Wolf-Dieter Heinrich’s redrawing of Janensch’s original sketch map of Quarry S, made in 1909 or 1910. Here it is again:
Taylor 2015: Figure 5. Quarry map of Tendaguru Site S, Tanzania, showing incomplete and jumbled skeletons of Giraffatitan brancai specimens MB.R.2180 (the lectotype, formerly HMN SI) and MB.R.2181 (the paralectotype, formerly HMN SII). Anatomical identifications of SII are underlined. Elements of SI could not be identified with certainty. From Heinrich (1999: figure 16), redrawn from an original field sketch by Werner Janensch.
For the preprint, as for this blog-post (and indeed the previous one), I just went right ahead and included it. But the formal version of the paper (assuming it passes peer-review) will by very explicitly under a CC By licence, so the right thing to do is get formal permission to include it under those terms. So I’ve been trying to get that permission.
What a stupid, stupid waste of time.
Heinrich’s paper appeared in the somewhat cumbersomely titled Mitteilungen aus dem Museum fur Naturkunde in Berlin, Geowissenschaftliche Reihe, published as a subscription journal by Wiley. Happily, that journal is now open access, published by Pensoft as The Fossil Record. So I wrote to the Fossil Record editors to request permission. They wrote back, saying:
We are not the right persons for your question. The Wiley Company holds the copyright and should therefore be asked. Unfortunately, I do not know who is the correct person.
I didn’t know who to ask, either, so I tweeted a question, and copyright guru Charles Oppenheim suggested that I email permissions@wiley.com. I did, only to get the following automated reply:
Dear Customer,
Thank you for your enquiry.
We are currently experiencing a large volume of email traffic and will deal with your request within the next 15 working days.
We are pleased to advise that permission for the majority of our journal content, and for an increasing number of book publications, may be cleared more quickly by using the RightsLink service via Wiley’s websites http://onlinelibrary.wiley.com and www.wiley.com.
Within the next fifteen working days? That is, in the next three weeks? How can it possibly take that long? Are they engraving their response on a corundum block?
So, OK, let’s follow the automated suggestion and try RightsLink. I went to the Wiley Online Library, and searched for journals whose names contain “naturkunde”. Only one comes up, and it’s not the right one. So Wiley doesn’t admit the existence of the journal.
Despite this, Google finds the article easily enough with a simple title search. From the article’s page, I can just click on the “Request Permissions” link on the right, and …
Well, there’s lots to enjoy here, isn’t there? First, and most important, it doesn’t actually work: “Permission to reproduce this content cannot be granted via the RightsLink service.” Then there’s that cute little registered-trademark symbol “®” on the name RightsLink, because it’s important to remind me not to accidentally set up my own rights-management service with the same name. In the same vein, there’s the “Copyright © 2015 Copyright Clearance Center, Inc. All Rights Reserved” notice at the bottom — copyright not on the content that I want to reuse, but on the RightsLink popup itself. (Which I guess means I am in violation for including the screenshot above.) Oh, and there’s the misrendering of “Museum für Naturkunde” as “Museum für Naturkunde”.
All of this gets me precisely nowhere. As far as I can tell, my only recourse now is to wait three weeks for Wiley to get in touch with me, and hope that they turn out to be in favour of science.
It’s Sunday afternoon. I could be watching Ireland play France in the Rugby World Cup. I could be out at Staverton, seeing (and hearing) the world’s last flying Avro Vulcan overfly Gloucester Airport for the last time. I could be watching Return of the Jedi with the boys, in preparation for the forthcoming Episode VII. Instead, here I am, wrestling with copyright.
How absolutely pointless. What a terrible waste of my life.
Is this what we want researchers to be spending their time on?
Promoting the Progress of Science and useful Arts, indeed.
Update (13 October 2015): a happy outcome (this time)
I was delighted, on logging in this morning, to find I had email from RIGHTS-and-LICENCES@wiley-vch.de with the subject “Permission to reproduce Heinrich (1999:fig. 16) under CC By licence” — a full thirteen working days earlier than expected. They were apologetic and helpful. Here is key part of what they said:
We are of course happy to handle your request directly from our office – please find the requested permission here:We hereby grant permission for the requested use expected that due credit is given to the original source.If material appears within our work with credit to another source, authorisation from that source must be obtained.Credit must include the following components:– Journals: Author(s) Name(s): Title of the Article. Name of the Journal. Publication year. Volume. Page(s). Copyright Wiley-VCH Verlag GmbH & Co. KGaA. Reproduced with permission.
So this is excellent. I would of course have included all those elements in the attribution anyway, with the exception that it might not have occurred to me to state who the copyright holder is. But there is no reason to object to that.
So, two cheers for Wiley on this occasion. I had to waste some time, but at least none of it was due to deliberate obstructiveness, and most importantly they are happy for their figure to be reproduced under CC By.
References
- Heinrich, Wolf-Dieter. 1999. The taphonomy of dinosaurs from the Upper Jurassic of Tendaguru, Tanzania (East Africa), based on field sketches of the German Tendaguru expedition (1909-1913). Mitteilungen aus dem Museum fur Naturkunde in Berlin, Geowissenschaftliche Reihe 2:25-61.
Sauropod Vertebra Picture of the Week 
October 11, 2015 at 5:25 pm
Faithful reproductions of public domain works are public domain in the US, and the berne treaty does not move any public domain works into copyrighted territory. The german copyright is thus irrelevant.
October 11, 2015 at 5:32 pm
Unfortunately, it’s not even clear which jurisdiction’s copyright laws apply. I am a British citizen, working the UK, writing a paper to be published in the USA, using a figure created in Germany (I assume) by a German, but owned by a corporation with HQs in the USA and Germany, and which was made by copying an illustration created in Tanzania (then Deutsch Ostafrika, subsequently Tanganyika). Nothing about this is straightforward. For that matter, it’s not even obvious to me that Springer legitimately holds the copyright.
October 11, 2015 at 5:59 pm
Email Daniela. Ask for a scan of the ORIGINAL map ;) Fuck Wiley.
October 11, 2015 at 6:14 pm
That is not a bad idea at all.
October 11, 2015 at 9:13 pm
Ah, I assumed it was much more straightforward from the quote of the Constitution in the headline.
October 11, 2015 at 10:24 pm
If you want an immediate reply and save all that time of looking for the correct person and/ or bureau to reply to … may I suggest to you to go right ahead and break the f*****g copyrite law ? That’ll always get the surest, fastest and most accurate response from the right person. Nothing works faster than “pulling the tiger by the tail.”
October 11, 2015 at 11:27 pm
Heinrich is brilliant. Simply skip out on the middleman, it makes dealing with copyright a whole lot easier. Another possible way to skip out wiley is to find the paper that the original was published in, because based on all the copyright information I know of, even if the picture is redrawn, it retains all copyrights of the original, and thus Wiley doesn’t even have the copyright.
Janensch died in 20 Oct. 1969, about 75 years ago. Copyright in the USA expires 70 years after the authors death, and thus it should be PD. But US has special rules for copyright, with anything published before ’64 copyright for 28 years after publication, so the original is long past copyright. However, these rules only apply to works published first in US.
For foreign works, anything published “without US formalities” (idk its vague) it PD as of 1996. And for thing published solely abroad 1923-1997 and published before 1964 without a copyright renewal is PD.
Thus, I think that the original is PD without a doubt. It would be preferrable. But, If you would prefer using Heinrich’s version, a very strong case could be made that it is PD as well, but not as foolproof as the original.
If you really want to check if Heinrich’s version counts only as a derivative and not as Wiley’s copyright, might want to check the wiki commons Public Domain talk page, which is where I got all this info, along with https://commons.wikimedia.org/wiki/Commons:Hirtle_chart.
October 12, 2015 at 3:41 am
I can’t wait for Google to start using the Courts to assert its digital copyright to all the Worlds literature. Seriously. I think it will inspire the powers that be (Congress, for one) to re-evaluate the whole idea of copyright. And particularly the extension of copyright protection multiple times.
Science should be a public endeavor, not a private business. For exactly the reason given for enforcing copyrights. “The advancement of the useful arts”. And a hundred year old anything should be public, if for no better reason, because the copyright holder is DEAD.
Tough to ask permission from a dead man. And it appears to my amateur eye that dead men is what you are dealing with. The default position is “NO!”, and “they” have to move a finger for that to change. And here is the key thing, “they” figure your time is theirs to waste.
And, by extension, everyone elses time. Think about it. Every living soul is waiting for progress and the hold up is “they” haven’t ‘gotten around’ to giving permission. 7 Billion people standing around, waiting, frequently checking their watches.
October 12, 2015 at 7:44 am
The situation is nowhere near as simple as some commentators make out. ijreid, 1969 is just 46 years ago. As Mike T points out, he is based in the UK, so it is UK copyright law that applies, and anything created by someone who died in 1969 is still in copyright in the UK. It is one thing to simply copy (I would take that risk, too), but another to then offer a document with infringing material in it under a CC licence, as Mike wishes to do. That is fraud. Frosted Flake’s comment is likewise incorrect. Once someone dies, their copyright goes to their heirs and successors, whoever is still alive – or it remains with Wiley, assuming copyright was assigned to that company. Add to the pot the fact that Wiley is aggressive in defending copyrights it owns, and Mike is absolutely correct to complain that the situation is a total mess.
October 13, 2015 at 2:46 pm
Coppenheim is so right, I had my head stuck in the wrong decade. However, I’m fairly certain that the copyright does not change with where the person reusing it is, but stays with the rules of the country that it was first created/published in. And one thing of note is that the time since death is only significant in the US, and there is a special rule in the US, with anything published before 1964 only copyrighted for 28 years unless it has its copyright renewed, and Janensch would have died before he could renew the copyright.
October 13, 2015 at 4:00 pm
ijreid is likewise correct. The rule for US creations in the UK is: look at whatever the lifetime would be in USA and in the UK and choose the shorter, BUT the minimum has to be life + 50 years. So the item might be out of copyright in the USA, but is still in copyright in the UK until the end of 2019. Also, although the creator might have died before possible renewal in the USA, do we know if his heirs and successors renewed the copyright? But as Mike T has pointed out, the problem has been resolved anyway.
October 13, 2015 at 9:13 pm
Pity you didn’t get to the point of using the original maps, or a modern digitisation thereof.
October 13, 2015 at 9:23 pm
Well, I still can do that if I want to. I have good scans now, provided by Daniela Schwarz of the Museum für Naturkunde.
October 14, 2015 at 1:02 am
The whole thing is a mess. IMO copyright terms should go back to the (US) original of 14 or 28 years… probably 5 or 10 for software actually.
Either that or have an “if it’s out of print/not available for 10 years it’s automatically public domain” rule.
October 14, 2015 at 7:43 am
Actually, I have become convinced that copyright now does so much harm, the world would be better off with no copyright at all than with the current mess. But yes, something simple like a ten-year-term after publication would be best of all: a clear financial incentive to do good work, but without the dragging effect on culture and science.
October 14, 2015 at 10:46 pm
the really big elephant in the room here is that Wiley’s involvement (they took over the old MfN-run journal) never saw the copyright for the interim issues defined. So we are facing a mix of German (very strict) and foreign copyright. UGH!
btw, “time since death is only significant in the US” – nope, it is also relevant in Germany.
October 15, 2015 at 6:43 am
Not just Germany and US. It’s crucial in pretty much every country in the world.
October 15, 2015 at 4:42 pm
Why doesn’t fair use apply? If movie and book reviews can use relevant images, why not a scientific paper? It’s not like you’re recreating the original publication in its entirety.
If that fails, I understand that modifying the image in some way sometimes also qualifies it for fair use. Couldn’t you throw some clipart of Littlefoot on it or something? (Maybe not that, but you get my drift.) ;)
October 15, 2015 at 4:57 pm
Well, what a good question. Does fair use apply? Unfortunately, the only way to find out for sure is to be sued, claim fair use as a defence, and see what the court says. (BTW., fair use is American, and may apply in this case since the new publication is in the USA; in the UK we have fair dealing, which is similar but not the same, and also may or may not cover scientific uses; I have no idea what the situation is in German law.)
There is a long and slightly honourable tradition in palaeontology of redrawing other people’s figures for one’s own publications. This is for various reasons. Often, the available copy of the original is of too low quality to be re-used, and the original author may no longer have the high-quality version. (I know, it’s ridiculous. But it happens.) But this is also done, I think, in the hope of making an end-run around copyright impediments. Whether it’s an effective manoeuvre I can’t tell you, beyond the observation that I’ve never known of anyone being sued for doing it.
October 16, 2015 at 8:07 am
It may well be fair use in the USA (I don’t know how flexibly that doctrine is applied there), but in the UK, the exception is the much more restrictive “fair dealing”, and since Mike would be doing the action in the UK, he is subject to that law. It covers reproduction for criticism and review (which arguably applies here), or for non-commercial research or private study (which may apply WHILST Mike was doing his original research but does not apply if he is reproducing the results of his research in a scholarly journal). So the answer in the UK is: it is a definite maybe. Overall – certainly a possibility, but not a certainty.
October 16, 2015 at 9:43 am
Ah, glad to hear you got (a fair copy of) the originals. If (and I say if) *they* are out of copyright, what stops you posting them online? With liberal license for preference. Presumably the Museum now has some sort of ownership of the maps, similar to how art galleries own paintings
October 16, 2015 at 10:37 am
I can and will post the originals online: the standard requirement from the MfN is the very reasonable one that they be credited — so something close to CC By. The real question is whether, since I have the originals, I might not just as well toss them into the paper along with Heinrich’s (1999) redrawn version. Why not? We live in a post-scarcity age where page-count is concerned.
February 20, 2016 at 10:00 pm
[…] permission from publishers to reproduce and modify illustrations from others’ papers — in some cases, illustrations that are over century old. A waste of my time, and a waste of the publishers’ time. (And I’m one of the lucky […]
October 1, 2022 at 8:42 am
[…] and its doppelganger Plateosaurus is comical (16 January and 5 September 2013), and of course Copyright: promoting the Progress of Science and useful Arts by preventing access to 105-year-old qu… (11 October […]