Fair Use In Scientific Blogging

GrumpySimon writes "Recently, the well-read science blog Retrospectacle posted an article on a scientific paper that concluded that alcohol augments the antioxidant properties of fruit. The blog post reproduced a chart and a table from the original article and everything was fully attributed. When the publisher John Wiley & Sons found out, they threatened legal action unless the chart and table were removed. Understandably, this whole mess has stirred up quite a storm of protest. Many people see Retrospectacle's action as plainly falling under fair use. There is a call for a boycott of Wiley and Wiley's journals."

Comments

IANAL, but is "Lisa"?

[faloi]

I only read the article after information regarding the original sender of the email was taken out of the email. Is this a case where a person affiliated with/employed by the parent company saw the copyrighted material and started the ball rolling? It sounds like this was a threatening letter from a company drone that would've (hopefully) been brought to a standstill had real lawyers been called in.

That's odd...

[Otter]

She's replaced the figures so it's hard to see what the original presentation looked like. But whatever the legal correctness of her fair use claim (which certainly has nothing to do with "This is taxpayer-supported research, which should be available for all."), it sounds like she did what scientists do routinely, so I can't understand why they're suddenly picking on her.

Come to think of it, industry researchers present slides with figures like that all the time, and it's not like there's a shortage of lawyers vetting them, and a lot deeper pockets for an angry journal to go after than some blogger has...

What do the charts represent?

[Yalius]

I'd say that, if the reproduced charts are one of the major points of the article, and depending on the data reported they may well have been, then the blogger would have a responsibility not to reproduce them. Fair use ought to be a means of commenting or reporting on another work, not replacing it. If I can get all the information I need from the secondary source, that exceeds fair use.

Re:What do the charts represent?

[David Gerard]

That's complete bollocks. Fair use is far from well-defined and is an eternal game of brinksmanship. Courts have found it to include anything up to 100% of the work in question, depending on the circumstances.

This is why we need Open Access.

[kebes]

I think the usage in question certainly falls under 'fair use.' It certainly fits into the norms in the scientific community. Even though the journals are part owners (or sometimes full owners) of the copyright of papers, it's very normal for scientists to email each other PDFs, post copies on their websites, reproduce graphs in presentations, and so on. This is not only considered "fair" but very much considered "necessary" to maintaining healthy progress in science.

Yet despite the fact that these allegations have little merit (ethical or even legal), they create a very real chilling effect that slows science and decreases the distribution of information. Add to that the fact that most of this published research is funded by tax-dollars through government grants, and it becomes positively infuriating that the very scientists who do all the work are not allowed to freely disseminate the results of that work to the people, who pay for it.

This is why we all need to support the push towards Open Access in scientific publishing. If you are a librarian, student, postdoc, academic or industrial scientist, you should be putting pressure on journals to open their content to the people who do the work and foot the bill. For instance, consider publishing in an open access journal (see list here), or at least sign the petitions (US or Europe). Also see a discussion here which lists a bunch of things (small and large) that you can do to promote open access.

Standard Procedure

[Anonymous Coward]

The standard procedure in the scientific community is that it's fine to describe someone else's results, critique their study, and even make your own graphs and figures that demonstrate their results. The problem is scanning / copying pixel for pixel a copyrighted, published figure or table and then re-publishing it in your own outlet. A picture's worth a thousand words... reproducing a thousand words from someone else's work = plagiarism... Making your own picture to summarize their results isn't. Another way to put it is that the ideas from the tax-funded research are public property (with citation, of course), but the artwork isn't.

Re-using someone else's figures can be done (and frequently is), but you have to get permission from the publisher. Of course, whether a blog counts as re-publishing is another debate entirely... this usually applies to reproducing a figure in a different journal or a book. It's not just this publisher, though, for those who are calling for a boycott; they almost all have equivalent rules on figure and table re-publication.

Re:Standard Procedure

[Anonymous Coward]

"A picture's worth a thousand words... reproducing a thousand words from someone else's work = plagiarism..."

With attribution it isn't plagiarism. The work isn't being claimed as someone else's. It might still be copyright infringement, yes.

"Re-using someone else's figures can be done (and frequently is), but you have to get permission from the publisher."

That isn't necessarily the case. Yes, publishers will ordinarily require you to seek permission from the original publisher. This is routine practice. But I suspect that the great number of such examples probably qualify as "fair use" anyway, and the effort is therefore redundant. Publishers are being cautious, because they'd rather not be in the legal situation of having to use a "fair use" claim as a defense in a copyright infringement case, and if you are running a business, it is hard to argue with that approach. But their choice of extreme caution (get permission for everything) doesn't change where "fair use" actually is. It also doesn't mean other people have to accept the hassle of seeking permissions all the time if they think they are in the clear. Copyright does have limits.

The insidious part of this, even though they are only protecting their interests, is the way that publisher's persistently narrow interpretation of "fair use" erodes the ability to have scientific publications (or any scholarly publication) without many legal entanglements. That's one of the reasons why specific limits were placed on copyrights in the first place: to simplify and enable scholarly activity (among several other things). The stimulating effect of having copyright limits without significantly compromising the copyright holder's commercial value is seen everywhere that copyright applies. Employing an "always ask permission" doctrine obfuscates the fact that it often isn't necessary, and it simply slows down the process.

Heck, I've received stuff via interlibrary loan with the usual "warning: no further copies" boilerplate on it, warning me about the copyright that applies to the work, and that I'm only getting the copy because the relevant university library has paid a blanket license fee for copying, and if I want another copy I need to pay X dollars more. Excuse me, but the paper I requested was first published in the 1860s!!! Copyright is expired and it is public domain! So I tore off the warning. Even some librarians apparently don't understand copyright.

No, this stuff is out of hand, and publishers have tilted things much too far towards their interests while ignoring what the law actually says. It's time we take back "fair use" by actually using it. If I was this blogger, I would tell Wiley "Thank you very much for permission, but for future reference, can you please clarify whether or not you would still consider my use to fall under 'fair use' even if I had not sought or received permission from you?"

I'd really like to know the answer. Dropping it because they gave permission doesn't clarify the situation at all.

Re:Ridiculous

[inviolet]

Please note: Wiley has responded and resolved the issue favorably [scienceblogs.com], blaming the matter on a juinor staffer...

Ah, I see that Wiley has followed Washington D.C.'s lead: before doing something objectionable, hire a junior staffer for blame absorption.

Unless, of course, anyone here actually believes that Wiley allows junior staffers to send out such demands without supervision. Uh huh.

On a more general note... these sorts of arguments about Fair Use are normal, healthy, and will occur regularly. Freedom and/or democracy means that there will be a great deal of public bickering. It's a Good Thing, because it means a) we aren't afraid to differ, b) we aren't afraid to talk about it, and c) we believe our countrymen are open to rational argument. A tolerance for this sort of tumult is a prerequisite to being a free society. Compare this to the fearful silence of a dictatorship.

Re:Agreed, and more so...

[HarveyTheWonderBug]

The latter are akin to artwork, which is what I think the blogger misses here. I don't really agree that she shouldn't be allowed to show a few select figures/tables, Artwork ? You must be kidding, right ? All tables in my field are generated with a few latex macros, and figures with various plotting packages. Moreover, they are generated by the authors, not the publisher. You usually see a "reprinted with permission" when the figure is included in a an other paper or book that will be sold. Otherwize, it's perfectly fine to reproduce a figure or a table from someone else's paper, provided that proper credit is given.

but her argument that it's taxpayer-funded (and therefore free to anyone) doesn't hold water. The purpose of scientific publication is to dissiminate results. In many papers, the results are not published in terms of machine readable files (like for example the data points of a plot, in ascii format), but in figures and tables. So yes, these figures and tables are the end result of taxpayer money. And I bet you that the author of the paper greatest wish is to have his figure reproduced, indicating the great impact of his paper.

Re:Agreed, and more so...

[HarveyTheWonderBug]

I admit being argumentative :) But I am quite baffled by this issue: I am a scientist. I publish in scientific publications. My research is completely funded by government money. I am evaluated largely on my publications in scientific litterature, that is, peer-reviewed articles. Every time I publish, I have to waive partially or fully my rights to the publisher. Sometimes, I am even charged to publish, for color figures for example (well, my grants pay for this). I am also acting as referee for some publications, a work that is done for free for the publisher, but paid by my government agency. So my epidermic reaction is : yes, use of reproducing any table or figure of my papers should be granted automatically, if the sources is properly referenced. There must be a "fair use" for this type of publications. So her argument is in a legal way the wrong approach: you made your point. But there must be a fair use for this type of situations, no ?