When Shelley Batts wrote up a report on an article about antioxidants in fruits, she never expected to get contacted by the copyright police, but that’s exactly what happened. She had reproduced a table and a figure from the article, and got this notice from an editorial assistant at the publisher:
The above article contains copyrighted material in the form of a table and graphs taken from a recently published paper in the Journal of the Science of Food and Agriculture. If these figures are not removed immediately, lawyers from John Wiley & Sons will contact you with further action.
She was appalled, and let the blogosphere know about it in this post. But she also did exactly what the publisher asked: she removed the figure and the table from her blog, replacing them with hand-generated versions she created in Excel. Should she have gone to all that trouble to comply with the publisher’s demands? Doesn’t the “fair use” doctrine allow reviewers to use excerpts from a work in critical commentary? Unfortunately, the copyright code isn’t as clear as it ought to be on this issue. It says that “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” That seems clear enough, but here are the considerations the code lists to be used in determining whether a reproduction of a work qualifies:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The whole thing is horribly ambiguous. While the code makes a distinction between “commercial” and “nonprofit educational,” it doesn’t spell out whether this provision supersedes the others. Surely “news reporting” is a commercial activity, yet it is specified as non-infringing. If a teacher photocopies textbooks instead of making her students buy them, then surely that has a negative impact on the value of the book, even though she’s working for a non-profit institution. A bad book review might have a negative impact on sales, but surely reviewers have the right to publish clips from the book to make their point.
So how do we find out whether Shelley’s reproduction of a figure and a table from the article was fair use? The only way is for Wiley to sue her (or Seed Media Group) and let the courts decide, using the copyright code’s scant guidance. Unfortunately Shelley is a graduate student with no budget for lawyers. Even Seed Media is a tiny organization compared to a major international publisher like Wiley. Is it worth it to either Shelley or Seed to battle it out in the courts over a couple of screenshots from a PDF?
Cost considerations aside, Seed might not even want to fight — after all, they’ve got their own copyrighted material to protect, and they may not want to set a precedent that says people can copy their illustrations willy-nilly. Shelley might not want to fight either — she may want to publish her research in a Wiley journal somewhere down the line, and getting on their bad side probably wouldn’t help her cause.
Over the years, CogDaily’s approach to these issues has been cautious. We generally try to recreate figures on our own instead of relying on screenshots from the published version. In the rare case when a figure is too complex or difficult to recreate, we publish the original, but let the authors know what we’re doing, and we expect that we might have to remove it if they object. Based on the reaction in the science blogosphere, perhaps we’re being too careful. Maybe if we weren’t so worried about copyright, we’d be able to report on more research.
Should a figure from a journal article be considered a work on its own, or should it be thought of as a part of the whole? We consider a photograph or a painting to be a single work, protected by copyright. Why not a graph? This is a crucial distinction, because the fair use provision asks interpreters of the law to consider the portion of the work reproduced to be a key factor. Two lines from a short poem may be a violation, but two paragraphs from a book probably isn’t. What about one figure from an article with ten of them?
And what of the larger question? Shelley was commenting on an article funded by the USDA. Should publicly funded research get locked up in copyright by a private publisher? Fortunately the underlying ideas, and the research data itself, cannot now be copyrighted, but if the only publicly accessible report of those ideas is sealed under copyright, then it may not matter whether the ideas themselves are free.
Update: Shelley says the issue has been resolved. However, I’m not so certain. The publisher didn’t acknowledge that her reproduction was fair use, just that they would typically grant permission in such a case. Personally I think it would be better if we didn’t have to ask permission in every case like this — it took a BoingBoing post and some harassment of the editorial assistant who sent the notice to get such a quick response. In the fast-paced blogosphere, we want to be able to report on things when they happen, not weeks later.