Cognitive Daily

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.

Comments

#1 pelf
April 26, 2007

I used to blog about the turtle projects carried out by the Turtle Research and Rehab Group of my university (posts that contain pictures and descriptions, nothing scientific) but my Supervisor requested that I remove them, and stop blogging about them because “she wants to protect her whatever rights.”

I was furious because:
(1) I never revealed any scientific data on my blog posts, only pictures and captions;
(2) I never said that “I” was behind all the projects. All credit goes to the Turtle Research and Rehab Group; and
(3) it wasn’t my intention to infringe on her rights or whatever, I just meant to spread the awareness on the kind of projects we conduct, and how we should all work towards saving the turtles.

But I did not argue with her. I password-protected the earlier posts, and stopped writing about them. I felt bad, having to stop spreading the awareness that was just picking up some momentum (I managed to attract the attention of a few enthusiastic readers who were concerned about saving the turtles).

Similarly in Shelly’s case, the term “copyright” is very vague. While the whole publication may be a copyrighted material, I agree that even a graph should also be copyrighted. BUT if we give due credit to the researchers, I don’t see a problem! As long as we DO NOT claim credits to the work presented (but give complete credit to the researchers), we should be alright. Shouldn’t we?

And, if we can’t discuss and share the knowledge we have, why print journals in the first place? Keep them in the locker instead, no?

*don’t sue me*
#2 Jean Marrapodi
April 26, 2007

Sheesh. Isn’t it ironic that we could have that same discussion over coffee at Panera Bread and the journal could be flipped open and the page referenced, yet in the blogsphere, we discuss findings and create knowledge together sharing the same document and the copyright police blow the whistle. The original has been modified, but it sounds like it was referenced to the source, which I think “counts”. It’s one thing to plagerize and not credit work. It’s quite another to reference it.

Sounds like the Wiley rep was doing his/her job searching for violations, but seems like s/he doesn’t get it.
Jean Marrapodi, PhD, CPLP
#3 Roy Huggins
April 26, 2007

@Jean: While I agree with you 100% in principle, there’s a problem with that analogy. It was established by court cases very early in the life of the web that anything you print on a web page is “published.” So an analogy to a coffeeshop conversation doesn’t hold up. This is actually to Shelly’s benefit. There are a number of reasons why she might want the contents of her blog to have the protections given to a “published” work.

That said, I can’t for the life of me figure out why reprinting one figure from an article that has many doesn’t count as fair use. There are tons of examples of fair-use on the web where bloggers reprint several paragraphs from a single news article.
#4 josh
April 26, 2007

The problem here, at least from the publisher’s, and thus copyright owner’s, point of view is not reference to the work. The problem is control of the copyrighted work. As the copyright owner, the publisher has the exclusive right to do a few things. Most importantly of those are the rights to reproduce and distribute. Any unauthorized copy (reproduction) or publishing (distribution) is an infringement of those exclusive rights, unless the use is a fair use (more on that below).
The figures, in the numerical sense, are not copyrightable. They are facts. Anyone can reprint them anywhere. The charts, graphs, and demonstrative figures are almost always copyrightable as particular expressions of factual ideas. Any unauthorized reproduction/distribution of such expression is likely to be seen as infringing unless it constitutes fair use under the law.

Fair use is a difficult thing to quantify. Moreover, courts (and our legislature) have over the past decade or so constricted the definition of fair use. While critical commentary, news reporting, etc… are statutory examples of fair use, all uses will be evaluated by a court under the four factors detailed in this post. Neither inclusion nor exclusion from the statutory list of uses is determinative.

The factors:
1) Purpose/character of the use: Noncommercial and educational. This tilts toward a finding of fair use. However, if the figure/chart was used for the same purpose in the blog as it was in original work, and is thus not transformative, this will cut against a finding of fair use.
2) Nature of the copyrighted work: Not sure what exactly the copyrighted work is…(expressive works will get more protection that factual/academic). The “work” might be the figure/chart, as this is separable and can stand alone from the article, which, in turn, can easily be separated from the journal.
3) Amount and portion of the work used. If we’re focusing on the single figure/chart here, this factor will cut against a finding of fair use, as the entire chart was duplicated.
4) Effect market (or potential/likely market) for the original. If there is or probably could be a market for the original work, as demonstrated by past sales and licensing agreements or a reasonable potential for the like, this factor will probably cut against fair use.

My ultimate take on it… Copying the figure/chart (even with reference and therefore not plagiarizing) wont be fair use unless the chart itself is the reason for the copying. Explanation: if you are teaching a class and need a copy for each student or you are critiquing the expressive features of the chart, the chart is an integral part of your use and is more likely to be found a fair use. If you’re primarily concerned with the numbers, that is you want to say exactly what the chart says, you should probably display the figures in your own expressive way.

Final thought, if the chart in the original work was independently created and copyrighted by an illustrator (who then licensed it to the author/publisher) it would be difficult for a duplication used for the same purpose as the licensed author’s/publisher’s use to ever be deemed fair.

Naturally, the foregoing is merely my opinion and first impression and should not be taken as legal advice in any matter.

-Josh
(a 2nd year law student with an interest in copyright)
#5 outeast
April 27, 2007

Interesting contribution, Josh. The potential for the ‘work’ to be defined as the figure itself would not have occurred to me (as is clearly had not to the commenters above). That is perhaps counter-intuitive, but it is likely a legally defensible position and clearly would make a very great difference to the case.
#6 Julia
April 27, 2007

Great post. I think it’s been a temptation for some other commenters to see this as an attempt by the copyright owners to prevent the dissemination of scientific information, when, in fact, it was apparently only the actual direct copying of the figures that was objected to, not the spread of the ideas and information.

It’s very common in business and technical writing for copyright holders to require permission for the actual copying of images of all kinds, including graphs and charts.

As Josh points out, “if the figure/chart was used for the same purpose in the blog as it was in original work, and is thus not transformative, this will cut against a finding of fair use.” In my thirty years of experience in teaching and editing technical writing in schools and in businesses, it’s become more and more clear as an established practice that simply copying organization techniques and presentation techniques is unacceptable and might be successfully challenged in court. If the figure had been, say, set up to be misleading, and Shelley had discussed the figure structure itself, it seems to me far more likely that she might have been able to successfully defend her reproduction of it. But to reproduce someone else’s creative organization/presentation of material as a way to avoid the trouble of creating a new presentation doesn’t seem so easy to defend against.

In material actually presented in classrooms, there is now a fairly detailed set of guidelines that, while not law, is becoming more and more widely accepted as a sign of good faith when it is followed. What I think many people don’t recognize is that time and size of audience appear to be elements in those guidelines. Generally speaking, copying for students apparently should be connected to an immediate need that precludes the time necessary for getting permission. So what might be permitted for a teacher wanting to bring in next class material to respond to a student’s question today might not be permitted without permission if the teacher simply planned ahead to use the same material the following semester. As for online classes, which has at least some small degree of parallel with blogs, the guidelines have appeared to indicate that material generally has to be confined to a specific audience (not available to the world at large) and can be posted only for the time necessary for a specific purpose.

While many of the comments made in the last few days about Shelley’s situation have simply insisted that Shelley need not ask permission to reprint the figures because they are fair use and she gave credit, there really does seem to be a difference in legal response between, on the one hand, summarizing and discussing information in one’s own creative format and, on the other hand, saving one’s self a bit of time and trouble by directly reproducing the copyright owner’s own original creative organization and presentation of that material. I don’t think that asking permission to imitate someone else’s creative organization/presentation techniques need have any sort of chilling effect on the spread of information. As Shelley showed, for example, she was perfectly capable of creating her own presentation techniques without any reduction in the depth and value of her comments.

I do think that the copyright representatives ought to have written her with more moderation and a fuller explanation. Intimidation techniques should have no place in a first approach to a reputable journalist like Shelley. Displays of courtesy and an assumption of good faith, especially on first contact, can go a long way toward developing a mutual understanding.
#7 Siva Vaidhyanathan
May 1, 2007

The issue is not fair use. It is copyrightability. Charts and graphs are unoriginal representations of facts and data. Facts and data are not copyrightable. So even using the original graph is fine, unless there are little drawings or a creative color scheme.

Everyone should feel free to replicate basic charts and graphs from scientific publications.

The copyright act is clear on this question.

Siva
#8 Dave Munger
May 1, 2007

That sounds about right, Siva. And looking back at Shelley’s (now restored) post, you can see that the graph and table in question were about as unoriginal as you can imagine.

I do dispute the notion that the copyright act is clear on this question. The copyright act is about as murky as you can get. That’s what leads people to ridiculous “5 percent” rules and the like. It has to do with the nature of the work in question, but exactly how is only going to be decided by (expensive) deliberation.