How the Wellcome Trust is breaking the Creative Commons rules

Peter Suber has blogged the press release fo the Wellcome Trust (UK):

Teachers, students, academics and the public can now download and use images depicting 2,000 years of mankind and medicine for free, thanks this newly launched website from the Wellcome Trust.

Launched on 15 June 2007, ‘Wellcome Images’ is the world’s leading source of images on the history of medicine, modern biomedical science and clinical medicine. All content has been made available under a Creative Commons Licence, which allows users to copy, distribute and display the image, provided the source is fully attributed and it is used for non-commercial purposes.

First, it is not a good idea to exclude commercial use. See my arguments at:

(One can add that Nature Precedings recently has also choosen the CC-BY-License )

Wikipedia is one of the most influential websites and cannot use pictures licensed with CC-NC.

Secondly, there is clear evidence that the Wellcome “Terms of Use” are Copyfraud as well as a breach of the CC licenses.

The images on this site are, unless otherwise stated, © Wellcome Trust, and in this situation, users may copy, distribute and display the freely downloadable version of the image under the terms of the Creative Commons Attribution-Non-Commercial version 2.0 licence for England & Wales (the “Creative Commons Licence”, for details see and the additional conditions set out below.

There is no statement that the Baldung image is clearly in the Public Domain. There was no court decision in England and Wales denying that the examination of English law by the NY court in Bridgeman v. Corel (1999) was wrong. A simple reproduction of a 2-D picture lacks originality. For that reason it is Copyfraud to claim a copyright for a XVIth. century picture.

Next point: Where Wellcome Trust is not the copyright holder, users may copy, distribute and display the freely downloadable version of the image under the terms of the Creative Commons Attribution-Non-Commercial No-Derivatives version 2.0 licence for England & Wales (the “No Derivatives Licence”, for details see and the additional conditions set out below.

It is in no way allowed to offer a license for works made by other. Only the copyright holder has the right to allow the publicly display of its protected works. Wellcome trust can show the pictures in the internet only if there is a consent of the rights holder or according the fair dealing provisions of UK right (but there are serious doubts that these provisions allow the internet presentation). The rights holder is the only person who can license the content. Therefore the CC-BY-NC-ND license has to be ignored.

Here is the UK legal code of the CC-BY-NC license:

It is clearly forbidden to set additional conditions like the Wellcome Trust (“and the additional conditions set out below”).

“You must not:

* impose any terms on the use to be made of the Work, the Derivative Work or the Work as incorporated in a Collective Work that alter or restrict the terms of this Licence or any rights granted under it or has the effect or intent of restricting the ability to exercise those rights” (CC legal deed)

Non-commercial covers existing copyright law exceptions, termed ‘fair dealing’ which includes:

* private study and non-commercial research
* criticism and review

in the above this applies only where there are no multiple copies made.

This is clearly wrong. CC licenses and fair dealing are independent and CC licenses don’t restrict fair dealing.

“This Licence does not affect any rights that the User may have under any applicable law, including fair use, fair dealing or any other legally recognised limitation or exception to copyright infringement.” (CC)

No user of CC licenses has the right to impos his own definition of “commercial use”. The definition is given in the legal deed (1 lit. e):

“”Non-Commercial” means “not primarily intended for or directed towards commercial advantage or private monetary compensation”. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed towards commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.”

A court has to take in account only this definition not the desires of the licenser.

The examples given by the Wellcome for NC use trust are clearly too narrow:

Other uses for which reproduction fees are waived by us for Wellcome-owned images are:

* examination papers
* reproduction in an academic publication, being a book, monograph or professional journal article publishing the results of original research, with critical apparatus (notes etc.)
* thesis submitted by a student at a higher or further education institution for the purposes of securing a degree
* reproduction in teaching materials created in any medium by a teacher or lecturer at an educational establishment for the purposes of teaching. This includes making printed copies of such materials for students and promoting and making such teaching materials available in electronic form , for example, via a virtual learning environment.
* use in exhibitions by not-for-profit organisations including accompanying printed catalogue material (not including promotional merchandise offered for sale).
* personal use by private individuals
* use in Wellcome Trust funded projects

The CC-license allows e.g. to put the content in other repositories or non-commercial homepages.

Wellcome Trust (WT) has accepted the BBB definitions of Open Access. He has supported OA a lot in the past time. Paradoxically Welcome Images’ “Terms of Use” are definitively not according the principles of the BBB definitions (these do NOT exclude commercial use).

CC should not accept that such a research giant like WT is ‘clearly breaking the CC licenses making them legally invalid for users.

WT should change the license in the OA-standard-license CC-BY (CC-BY-NC-ND is not necessary because it is, as I have shown, not allowed to put a license on not-own content).

WT should mark Public Domain content and forgo copyfraud.

Images are scholarly “data” which should be OA without restrictions. It is great that these pictures are online free of cost but WT should avoid unnecessary restrictions and permission barriers regarding the re-use of the pictures.

Strafprozessakten als historische Quelle

Konferenz: Die Juristische Aufarbeitung von NS-Verbrechen. Strafprozessakten als historische Quelle

Veranstalter: Lehrstuhl für Neuere und Neueste Geschichte, Universität Augsburg

Datum, Ort: 03.07.2007-04.07.2007, Universität Augsburg, Zentralbibliothek (Vortragsraum, Nr. 3010)

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