[Taxacom] Filling the world with biodiversity data errors... or copyright infringement?

Donat Agosti agosti at amnh.org
Sun Dec 6 13:58:14 CST 2020


Dear Carlos



Here the requested comment in regards of copyright of taxonomic works and data therein, access through the Biodiversity Literature Repository, and reuse by third parties like GBIF.



We have explained the basic elements of our copyright policy in Agosti D, Egloff W 2009. Taxonomic information exchange and copyright: the Plazi approach. BMC Research Notes 2009, [2:53]. DOI: 10.1186/1756-0500-2-53<http://dx.doi.org/10.1186/1756-0500-2-53>. Our policy is still the same: We extract data under Swiss Law. We make the extracted data available in BLR. The original documents are only available if they are declared open or if the original document is not copyrightable.



Meanwhile, we have adopted this process to the revised Swiss copyright law that was enacted on April 1st, 2020. We have concluded an extensive collective licence agreement with the Swiss collecting society ProLitteris b<https://prolitteris.ch/fileadmin/user_upload/ProLitteris/Dokumente/Erweiterte_Kollektivlizenz/Announcement_extended_collective_license_ProLitteris-Plazi_2020_Opt-out_form.pdf>y which ProLitteris authorises Plazi to re-use all published photos and other images for the purpose of indexing and making available the worldwide biodiversity literature in the context of BLR. The new regulation refers mainly to the extension of copyright protection for photographs.



As a consequence, all our extracted material is legally made available. Our workflow does not infringe copyright in any way. We do not need any agreement by any copyright holder, as this agreement, as far as it is needed, is replaced by copyright exceptions and limitations in the Swiss law or by the extended collective licence granted by ProLitteris.



It is obvious that the Natural History Museum of Denmark is ruled by Danish law and not by the Swiss law. But this is of no interest because GBIF does not make use of the information provided by Plazi in the sense of European copyright law. By indicating the BLR data provided by Plazi, GBIF does not make available any content, but it links to content that is already available. The Court of Justice of the European Union has made clear, in a whole series of rulings, that linking to a freely accessible website, is not a communication to the public and has no significance under the aspect of copyright.



If the material provided by Plazi contains copyright protected works, the right holder is indicated in the usual form (© [author's name]). This indication has no legal value and it may be erroneous in some cases. It can be false because the original source indicates the wrong author. It can have been correct in the moment of declaration and become erroneous later on, because the copyright has been transferred. Or it is inapplicable because the text or the image marked with the ©-sign is not a work in the sense of copyright and therefore not copyrightable.



It is therefore not true that the publication of taxonomic information as it is made available in BLR and indirectly in GBIF requires an agreement of the "original data owner". First of all, there is no such thing as a "data owner", because data cannot be legally owned. Magnolia Press is not a "data owner", but a copyright holder. Data can eventually be the subject of an intellectual property right, such as copyright, trademark protection or patent law. As far as there is no intellectual property right, data are in the public domain and can be used by anyone. If data are protected by an intellectual property right, the use of these data is allowed when authorised by the right holder or by a legal exception or limitation. The Plazi workflow is based on such exceptions and limitations as well as on the aforementioned extended collective licence accorded by the competent collecting society. That's why it is in absolute conformity with copyright law and does not constitute any copyright infringement.



Best regards



Willi Egloff and Donat Agosti


From: Carlos Alberto Martínez Muñoz <biotemail at gmail.com<mailto:biotemail at gmail.com>>
Sent: Friday, December 4, 2020 10:20 PM
To: taxacom-request at mailman.nhm.ku.edu<mailto:taxacom-request at mailman.nhm.ku.edu>; Donat Agosti <agosti at plazi.org<mailto:agosti at plazi.org>>; Tim Robertson <trobertson at gbif.org<mailto:trobertson at gbif.org>>
Subject: Re: Filling the world with biodiversity data errors... or copyright infringement?

EXTERNAL SENDER

Dear Donat,
It has been explained in print why the Plazi approach is legal under Swiss law. That seems to do the trick for copyrighted content to be displayed on the Plazi website. Now, the GBIF Secretariat office (including Informatics) is at the Zoological Museum, Natural History Museum of Denmark. It is under Danish and EU laws.
I assume that for the GBIF, Plazi acts as a Data Publisher, a custodian of data making it technically available. However, we know that Plazi is not the data owner. So Plazi should have declared to GBIF that they have permission to make the data available, but this does not seem to be the case. Every Data Publisher must warrant GBIF that it has made the necessary agreements with the original owners of the data and other material which may be subject to a third party's copyright or other similar rights. Plazi has avoided this by acting under Swiss law, but EU laws apply while making data available through the GBIF network.
For example, has Zootaxa, which purports to be the owner of 25% of the newly described animal taxa published each year, authorized Plazi to display their paywalled taxonomic treatments in GBIF? When publishing in Zootaxa, the author(s) assigns to Magnolia Press exclusive copyright and related rights in the Article, including the right to publish the Work in all forms and media including print and all other forms of electronic publication or any other types of publication including subsidiary rights in all languages. Let's now take a look at one example of how copyright is incorrectly attributed by Plazi and consequently by GBIF. The GBIF taxon page for Newportia spelaea (https://www.gbif.org/es/species/119592758<https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.gbif.org%2Fes%2Fspecies%2F119592758&data=04%7C01%7Cagosti%40amnh.org%7C7d1325548e6e4aca045808d8989a697e%7Cbe0003e8c6b9496883aeb34586974b76%7C0%7C0%7C637427136251647136%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=sTvVF8A%2BFLVvnPbr0zaPB32ptR1IbFmMdwWyBEplPW0%3D&reserved=0>) display the corresponding description text and images, the latter being attributed to "© Ázara, Ludson Neves De; Ferreira, Rodrigo Lopes". However, this is not the case, the copyright having been transferred to Magnolia Press. So, two issues in one are here created. First, display of copyrighted text and images by GBIF, BLR, and Zenodo would violate Magnolia Press exclusive rights under EU laws, regardless of Plazi legal provision under Swiss laws. Second, misattribution of copyright to the authors instead of the publisher is in evident conflict with the publisher's copyright transferral procedure.
To make myself clear: I was very surprised when copyrighted taxonomic treatments generated by Plazi made it into GBIF. This is a transboundary issue, with multiple laws involved, not just Swiss laws. Accepting data which has been released under loose Swiss copyright laws into an aggregator under European copyright laws seems no other than copyright infringement whitewashing. If it is legal for GBIF, BLR, and Zenodo to display treatments provided by Plazi, then it would be legal for 500+ Scrachpads, several WoRMS databases, and other virtual research environments (VREs) to display those treatments and accompanying images as well.
So, if that is legal, what to do next? Are we all going to happily copy the treatments provided by Plazi and display them in our VREs? Or should we all register our VREs in Switzerland and start doing what Plazi does? Because in one thing I disagree with you. You wrote "Currently the Plazi workflow is the only way to get data about new and already known species close to the day of publication into GBIF, BLR so it can be widely used". That pretty much depends on which kind of data we are talking about. Scratchpads are able to send and GBIF is able to ingest taxonomic backbones, on a daily basis if GBIF wants. And some Scratchpads are "widely used". At least for the basic data that we know is legally free to release, Plazi is not the only possible provider. For open access treatments, the journals that have implemented the TaxPub standard deserve acknowledgment. For copyrighted treatments, Plazi is indeed the only provider, at least that I know.
I would very much like a legal explanation on data reuse of Plazi treatments by platforms under European laws. Hopefully it will be one affirming that the VREs can legally join this open access revolution on taxonomic treatments, whether they are registered in Switzerland or not, and that Plazi does not need to fight this battle alone.
Cheers,
Carlos

P.S.: The page for individuals to sign the Bouchout Declaration has been malfunctioning for a long time. I would be very grateful if someone from Plazi could manually sign me in. Thanks in advance!

Carlos A. Martínez Muñoz
Zoological Museum, Biodiversity Unit
FI-20014 University of Turku
Finland
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