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

Ridiculous

[Corpuscavernosa]

Hey we all know that there's not much money in science, but seriously. This article embodies what fair use is all about.
From Sec. 107 of the Copyright Act.

...the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

It doesn't get more simple than this. They've been hanging out with the RIAA too much...

Re:Ridiculous

[squidfood]

Please note: Wiley has responded and resolved the issue favorably, blaming the matter on a juinor staffer... and asking for no abusive email to the junior staffer...

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:Ridiculous

[TheLink]

ORLY? Junior staff get that much authority? Such empowerment.

Maybe it's an ex-senior staffer who's now a junior staffer or is that even more unbelievable nowadays ;).

Re:Ridiculous

[squidfood]

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

Yes, in addition, it creates a type of legal question-begging: if you routinely grant permission for what would be fair use anyway, no one can take you to court to say they don't need your permission to engage in fair use, so fair use rights can never be firmly tested. Very convenient!

Other questions to ponder are whether this is a routine scare-tactic from Wiley (which they would back down on, but cows 95% would-be users), etc. All worthy of discussion in this thread, but probably, at this point, not worth another ream of e-mail to the so-called "junior staffer."

Re:Ridiculous

[mindwhip]

Gah! I just spent 10 minutes trying to remember what my dam password is... (well 2 minutes anyway)

Re:Ridiculous

[GrumpySimon]

One thing I forgot to mention in the overview is that we should keep in mind that Wiley & Sons are part of the "American Association of Publishers" who have deliberately attacked the open access publishing movement, and have hired PR stooge Eric Dezenhall to help them. Slashdot discussion on that here.

In short - I wouldn't trust them as far as I could spit them.

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...

When Darwin Meets Publishing

[mfh]

Darwin said it best when he said, "I love fools' experiments. I am always making them."

And it would seem that producing valid data in the form of a chart, publishing it and then going after someone for publicizing your findings is fool hearty at best, but sadly also very mean spirited and it works against the mission of the scientists in the long run.

I will not seek to help profit those who would still falsely believe in a captive audience, so therefore this publisher is coming off my reading list.

Agreed, and more so...

[RingDev]

What's the point in publishing a paper that you want no one to cite!?

-Rick

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 ?

both sides

[Anonymous Coward]

I'm someone who works in the publishing field, so I'm coming at this from both sides. As far as the blog's reproduction of the figures/tables is concerned, I would absolutely consider that as falling under the realm of fair use. However, I also have to deal with permissions to reproduce figures and tables. As far as I'm concerned, permission/payment should only be necessary when you intend to reproduce the material and include it in something that is sold (eg, another journal, magazine, pay website, etc). The problem is that many copyright lawyers don't see things that way...

They are known for extortion too!

[Chickan]

Wiley & Sons are notorious in my book for being a bunch of crooks. They threatened to sue me over including a copy of the answers with a text book I was selling on a popular auction website. The sent me an extortion letter claiming if I paid $100 per copy sold and refrained from selling it in the future everything would be forgiven, or else they would sue me in court. It took several phone calls and a letter from my lawyer to get out of the mess. I wasn't even charging for the cd key!

loot at the actual link

[superwiz]

The first poster in response to her blog is actually on Wiley editorial board. And he agrees with her -- not the company. This is the problem with lawyers running everything. It's very hard to get them to understand the world beyond dollar signs -- most of them just don't have the background.

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?

[forand]

Apparently you do not work in a scientific field. The only way to discuss the results of someone else's work in a reasonable way is to show those results. If I were to just say "and this is what their articles says, trust me" without BOTH showing their evidence and citing their work then what I am saying is just a bunch of bull. A scientist cannot ask the reader to trust them on their interpretation of another's work; they need to show it, if possible, or reference it heavily and try to show some of the relevant data.

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.

fair use

[OldChemist]

As an amateur blogger, sometimes on scientific topics... I usually like to give a web reference when I quote from some article or post. Unfortunately, if you are quoting from a scientific journal or article where the material is not available without a subscription, this is not going to do anyone any good. So I usually quote the stuff and put in the caveat that the post is done in the belief that it is allowed by the doctrine of fair use. I've cautiously put in some graphics in an attempt to test the waters. So far, no one has called me on it. I don't know what I'd do if they did. (Probably cave..) But as others have commented there always seems to be some jerk out there who thinks that they can make a lot of money out of some fairly trivial and shortlived post on a blog. Makes you wonder. OC

Academic journals are generally a mess

[Gogl]

As a budding academic the state of publications and intellectual property is quite depressing. This is a good writeup on it, pertinent excerpt:

I have an ingenious idea for a company. My company will be in the business of selling computer games. But, unlike other computer game companies, mine will never have to hire a single programmer, game designer, or graphic artist. Instead I'll simply find people who know how to make games, and ask them to donate their games to me. Naturally, anyone generous enough to donate a game will immediately relinquish all further rights to it. From then on, I alone will be the copyright-holder, distributor, and collector of royalties. This is not to say, however, that I'll provide no "value-added." My company will be the one that packages the games in 25-cent cardboard boxes, then resells the boxes for up to $300 apiece.

But why would developers donate their games to me? Because they'll need my seal of approval. I'll convince developers that, if a game isn't distributed by my company, then the game doesn't "count" -- indeed, barely even exists -- and all their labor on it has been in vain.

Admittedly, for the scheme to work, my seal of approval will have to mean something. So before putting it on a game, I'll first send the game out to a team of experts who will test it, debug it, and recommend changes. But will I pay the experts for that service? Not at all: as the final cherry atop my chutzpah sundae, I'll tell the experts that it's their professional duty to evaluate, test, and debug my games for free!

On reflection, perhaps no game developer would be gullible enough to fall for my scheme. I need a community that has a higher tolerance for the ridiculous -- a community that, even after my operation is unmasked, will study it and hold meetings, but not "rush to judgment" by dissociating itself from me. But who on Earth could possibly be so paralyzed by indecision, so averse to change, so immune to common sense?

I've got it: academics!

So yeah. Fair use in blogs is just the tip of the iceberg - the most egregious issue is that *we* are the ones who write, check, and prepare the documents, and then we have to pay again just to read them (and even if we don't pay directly you can be damned sure the libraries pass the costs down to us in the form of tuition and such).

Problem already resolved

[orion024]

The problem seems to have already been resolved. http://scienceblogs.com/retrospectacle/2007/04/vic tory_a_happy_resolution.php

Way to go blog-o-sphere, for making your voice heard. Though, interestingly, they didn't state that it fell under fair use, but rather they "gave her permission" to use the figure and data. So, maybe only a half-win.

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:I bet thats what happened

[pedalman]

Or maybe Jerry Taylor is moonlighting at John Wiley & Sons....

This isn't fair use

[Shohat]

This is not about fair use or commentary/research - The blog is commercial, filled with ads and other goodies. Her blog post generates revenue, and is not just shown to a classroom for educational purposes. This isn't about scientific blogging.

Lots of scientific journals need to be boycotted

[AxelBoldt]

If you are about to publish a scientific paper, please read this call to action by the ever wonderful John Baez first and make your choice accordingly.