BioRender Copyright Saga continues

On September 5 BioRender introduced changes to its stance on open access publishing which has been criticized in the past by the scientific community.

@BioRender seems to have listened to the twitter discourse and changed their terms accordingly? @ShizAoki

Note: I haven't read the updated terms, but did get this email. pic.twitter.com/nYzBJcNMQs

— Will Ratcliff (@wc_ratcliff) September 5, 2024

In their summary of their license changes BioRender claims their product is now fully compatible with CC BY 4.0 without users having to request special permission for CC BY NC ND as before. These changes include putting a special link into the figure caption of each academic publication where the figure is used. Other researchers who want to reuse or modify the figure have to request permission and need to become BioRender customers to republish the figure in an academic journal.

More specifically the full copyright notice as given on the webpage that needs to be linked is as follows (Example ) :

You can view and use this Completed Graphic under a CC-BY license (that applies to the Open Access article containing this Completed Graphic), as long as you have permission from the author. If the author grants permission (or has already granted permission), you can modify and use the graphic for personal purposes with a Free BioRender account, but NOT for commercial or publishing purposes. If you want to publish the graphic without any modifications, you must cite the original author after you get their permission. For publishing with modifications, you’ll need a paid BioRender plan and you must follow the relevant license terms that apply to your plan.

This statement is unclear and legally problematic for several reasons that any lawyer or person even slightly familiar with the Creative Commons family of licenses can easily recognize. The following summary why this statement is legally invalid was largely written by ChatGPT showing that even non-humans can easily understand this statement is invalid.

Problems with BioRender’s new copyright statemnt

1. Contradiction with the CC-BY License:
   A CC-BY license (Creative Commons Attribution License) allows users to copy, distribute, display, and perform the work, and make derivative works based on it, provided they give appropriate credit to the original author. It does not require additional permissions from the author, which contradicts the part of the statement that says “as long as you have permission from the author.” If a work is truly licensed under CC-BY, the need for additional author permission doesn’t align with the terms of the license.
2. Restricting Use Based on BioRender Terms:
   The statement implies that to modify the graphic or use it for specific purposes, a user needs a BioRender account, which adds complexity and is a technological restriction forbidden by the CC BY license terms. If the graphic is licensed under CC-BY, then the use of the graphic should not be subject to platform-specific terms like requiring a Free or Paid BioRender account. The requirement for a paid BioRender plan for publishing modified versions is a conflict with the open nature of CC-BY.
3. Commercial Use Limitations:
   The CC-BY license allows both personal and commercial use as long as proper attribution is given. The statement suggests that commercial or publishing use requires either a Free BioRender account (with limitations) or a paid plan. This goes against the CC-BY license, which does not impose such restrictions.
4. Citing the Original Author:
   The statement says, “If you want to publish the graphic without any modifications, you must cite the original author after you get their permission.” Again, if the work is licensed under CC-BY, the user already has the right to reuse it as long as they give appropriate credit, without needing further permission from the author.
5. Additional License Terms (BioRender):
   The final part mentions that for publishing with modifications, the user must follow the relevant license terms that apply to the paid BioRender plan. However, CC-BY license terms would supersede any restrictions added by BioRender, which could create confusion or legal ambiguity.

For the reasons listed above this statement is not legally valid as it attempts to add additional restrictions that contradict the terms of the CC-BY license. A CC-BY license cannot have added requirements like author permission or platform-based limitations (e.g., requiring a BioRender account), and restricting commercial use also violates the principles of the CC-BY license.

We strongly advise scientists not use BioRender’s own legal language to use their illustrations in Open Access journals published under CC BY. Using their language could lead to your paper needing to be corrected in the future. BioRender has claimed it will do this for at least two papers (although nothing has happend so far).

If you really want to publish your BioRender illustration in an Open Access paper and you’re allowed to use a different license for the figures clearly denote in the figure caption for each BioRender figure: “Copyright BioRender All Rights Reserved” instead of “Created with BioRender.com”. This is legally bulletproof¹ and fully complies with the BioRender Academic license giving you the right to publish the material but not to make the material available under the terms of the CC BY license (even if BioRender claims this). Some publishers like PLOS however request that you exclusively use CC BY material so there you cannot use your BioRender figure.

It remains to be seen how BioRender will fix the many thousand articles already using their material under CC BY.