Why Thousands of Studies May Be in Copyright Limbo

BioRender Logo

Thousands of studies published in open-access journals may contain images that are not licensed for reuse. This is because the authors used the image generation service BioRender, which limits how images created using it can be distributed.

According to an article by Dalmeet Singh Chawla at Chemistry World, Simon Dürr, an enzymologist based in Switzerland, first spotted the issue.

According to Dürr, he contacted BioRender about the issue last year, presenting two articles that use BioRender images under an open-access license. BioRender said that those papers would have to be corrected. However, when he flagged an additional 9,277 papers, BioRender stopped responding.

Dürr notes that the number rises to 12,059 if you factor in other, less open copyright licenses.

In addition to his academic work, Dürr operates BioIcons, an open-source competitor to BioRender that is free to use. However, BioRender’s tools remain popular with researchers due to the ease of creation and the extensive library of drawings.

Still, the licensing issues around BioRender remain a concern for many researchers, enough that some are either hiring artists to draw images, creating their own, or using a service like BioIcons.

It’s easy to see why there is so much uncertainty, especially when you examine BioRender’s license terms.

Understanding the Problem

Open-access journals typically publish under a CC-BY license. This license allows others to freely copy, distribute, and reuse the content if attribution is provided. Many researchers prefer open-access journals specifically for this reason. Closed-access journals are often hidden behind paywalls that limit distribution.

However, BioRender is a commercial service. It uses a library of 50,000+ icons across 30 fields and provides software to manipulate the icons to create diagrams for papers, posters and presentations.

The issue arises when one examines the license terms for BioRender works. Though the terms feature both legalese and “Plain English” versions, the exact terms are highly confusing.

For example, in section six, the formal terms read:

You agree that BioRender shall be deemed to own the Copyrights in any Modifications of BioRender Content appearing in Completed Graphics prepared by you, and any such BioRender Content created by you is a “work made for hire” for BioRender under the U.S. Copyright Act and any and all similar provisions of law under other jurisdictions, and that BioRender shall be deemed to be the author of such works for all purposes.

However, the plain English version says:

We DO NOT own the figures you create in BioRender.
‍You own:
The figure you create in BioRender (Completed Graphic) which is the assembly of different BioRender Content and/or User Content;
your User Content (or you have a license to use it from wherever you got it).

However, the main focus appears to be that BioRender wants to retain control over the drawings that it manages. While it doesn’t claim ownership of a finished product, since that finished product will be primarily made up of BioRender-owned icons, the user’s ownership would be limited to just the arrangement.

In order to publish a BioRender-created drawing in a journal, you first need to obtain a publication license. According to BioRender, that license does allow for publication in open-access journals.

Can I publish my figure in Open Access journals?
Yes!  With a paid Academic License, you can publish a figure in an Open Access journal, including under CC-BY 4.0 licensing without having to contact the BioRender team. Just generate the Publication License (details above) for the figure and use the included citation in the figure caption, footnote, or credits when publishing your figure.

However, a CC-BY license permits others to create derivative works based on the original. Theoretically, a user could crop out the icons in the image and use them elsewhere. However, this is something BioRender expressly forbids without a license.

In short, if BioRender licensed its images under a CC-BY license, it would be unable to protect the icons that are the core of its business.

This leaves them walking a delicate tightrope. They are trying to serve those publishing in open-access journals without giving away their core product. However, we’ve seen this before in a very different environment.

From Science to Custom Minis

Four years ago, Sky Castle Studios incited controversy with the launch of its Hero Forge service. The service allowed users to create “custom” miniatures using a collection of pre-made assets. However, the company also had a strongly-worded TOS that made creations designed in Hero Forge their property.

The similarities between the two stories are apparent. Both services allow users to create custom works using premade assets. Both also have strongly worded TOS to aim to protect those assets, but this has created confusion about the ownership of the final work.

In the Hero Forge case, the company took to X (formerly Twitter) to explain that it isn’t trying to own the person or character depicted. Instead, it was simply saying it owned the individual parts and combinations thereof.

However, where the Hero Forge story was one of an aggressive TOS, BioRender’s case is one of wholesale confusion.

BioRender has repeatedly tried to clarify this issue. However, the information is often contradictory and judging from the information shared by Dürr, the staff at BioRender may be equally confused. There doesn’t seem to be a clear way to reconcile BioRender’s protectionism with the CC-BY license.

While there are workarounds, such as indicating that the image is under a different copyright license, this is still a kludgy mess. If it’s confusing for people familiar with copyright, imagine how researchers with no copyright experience must feel.

Honestly, it’s a mess that is best avoided if at all possible.

Bottom Line

The problem here is simple. Open access is not just a publishing philosophy; it’s a copyright issue. Though the author can easily give up the needed rights to their work, things get more complicated when third-party works are included.

If you are going to seek open-access publication, it’s best to ensure that everything is either your creation or under the same license. BioIcons, for example, addresses this issue neatly.

However, that’s not always practical. Academics often don’t know what kind of journal their work will be published in when writing their papers. That is asking academics to plan for something largely out of their control.

As such, it may be wiser to play it safe and ensure that any third-party material is compatible with any license. That means treating a paper as if it will be open access even if it doesn’t end up there.

While it’s frustrating that researchers have to consider copyright when writing their papers, this is a reality for any publication—even an academic one.

It’s just an example of how copyright impacts all areas of culture and knowledge.

Want to Reuse or Republish this Content?

If you want to feature this article in your site, classroom or elsewhere, just let us know! We usually grant permission within 24 hours.

Click Here to Get Permission for Free