A Question of Publishing Ethics

Posted by Chad Orzel on July 23, 2008
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There’s a classic paper on the Quantum Zeno Effect that I discuss in Chapter 5 of the book. The paper does two tests of the effect, and presents the results in two bar graphs. They also provide the data in tabular form.

My question is this:

If I copy the data from the table, and make my own version of the graph, am I obliged to contact them and ask permission to duplicate their results in my book?

If I were copying their graphs directly, I would definitely contact them and ask permission, but I’m not as certain about using their data to make my own version of their graphs.

Complicating matters, when I asked Kate about this, she replied “Why would you need to ask permission to reproduce figures? Isn’t that fair use?” I have no idea why it is, I just know that it’s What Is Done in these cases (having been contacted a few times for permission to reproduce stuff from papers I wrote).

(Clarifying note: I’ll contact the group in question regardless, just to be polite, but I’m curious about whether I need to. Also, in this specific case, it’s probably a moot point, as the paper in question was work done for the US government, and is not subject to copyright, but I’m interested in this as a general matter.)

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  1. #1 Eric Lund
    July 23, 2008

    Since you are writing a book for a general audience, you have to be more careful than if you were writing for publication in a journal. The reason is that it is harder for the author of a book to make a “fair use” argument, mainly because the author is receiving direct royalties from sales of the book.

    In a journal article, it would generally be considered fair use to reconstruct the figure using data from the table as long as you give credit to the original source. Assuming the reference to be Smith and Jones (2005), I would include in the caption words like “After Smith and Jones (2005)” or “Adapted from Smith and Jones (2005)”.

    Your experience matches mine with respect to direct duplication of figures. At least in my field, textbooks and review articles routinely contain notices that Figure Thus-and-so is copyrighted by the company that publishes the journal in which the figure originally appeared and that the figure is reproduced with permission. I suspect that the difference lies in the direct reuse, rather than reconstruction, of the figure–the greater the degree of copying, the harder it is to successfully mount a fair use defense.

    The US Government copyright exemption applies only to work done by government employees in the course of their official duties. If that is the case, then you are correct that the work is exempt from US copyright (however, if it was published in a non-US journal the publishers of that journal can still claim copyright in other countries). If any co-author was not a government employee, however, US copyright is still applicable.

  2. #2 chezjake
    July 23, 2008

    Ask your editor about your publisher’s policy. Your publisher may well want to have the permission even if it’s not otherwise required.

  3. #3 Michael Reagor
    July 23, 2008

    Standard librarian disclaimer: This is not legal advice.

    I’m no copyright expert, but I have done a lot of research into it lately, so I feel pretty well qualified to answer this. The data that they used to create the graphs is their intellectual property, so using it to create your own graphs (which I assume would look pretty close to their graphs, seeing as how they are both based on the same data) would be a violation of their copyright. Also if it actually went to court the first thing a judge would look at is that you are using it in a book you are selling. It’s much harder to prove fair use if you are profiting from it. But, as you say, works by the U.S. Government are not copyrightable so there is no possibility of infringing on their copyright. I am glad you will be contacting them, because it’s The Right Thing To Do, but I don’t think it’s The Necessary Thing To Do.

    So to sum up: Exactly what you said in your post.

  4. #4 Chad Orzel
    July 23, 2008

    The US Government copyright exemption applies only to work done by government employees in the course of their official duties. If that is the case, then you are correct that the work is exempt from US copyright (however, if it was published in a non-US journal the publishers of that journal can still claim copyright in other countries). If any co-author was not a government employee, however, US copyright is still applicable.

    If you have access, and look at the first page of their paper, it says “Not subject to copyright” at the bottom. It’s definitely not applicable in this case.

  5. #5 Jon
    July 23, 2008

    From Copyright.gov
    Things that can not be copyrighted:

    Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration

    You can’t copyright facts. I don’t think you have to ask them at all, but I think asking them is the right thing to do, and you should definitely cite your source.

  6. #6 Kate Nepveu
    July 23, 2008

    (Also, my fair use question was more directed to use in other academic papers, not the book.)

  7. #7 Hadley Wickham
    July 23, 2008

    Michael: that’s not correct. Under US law, data is not copyrightable. See http://www.iusmentis.com/databases/us/ for more details and relevant case law.

  8. #8 Michael Reagor
    July 23, 2008

    Hadley, that’s true enough. I knew that facts are not copyrightable, but I unfortunately lack the physics understanding to know when something becomes a “fact.” But fortunately I just learned that copyright law doesn’t actually need me to make that distinction. It states that “ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices” are not copyrightable. And this certainly falls under “discoveries.” But while facts are not copyrightable the way those facts are presented can be (although, now that I think about it, I kind of doubt that a simple bar graph contains the requisite creativity to fall under copyright either). But of course, all this is still moot since the document in question is not under copyright anyway. Apparently I would just rather research copyright law than do my actual job today.

  9. #9 Kurt
    July 23, 2008

    This question is somewhat reminiscent of the big to-do on ScienceBlogs last year when Shelley Batts reproduced a chart from a journal paper. The publisher was giving her a hard time about it and as a work-around she just used the raw data points to create her own graphic. Evidently the fair-use rules are much, much stricter about ‘artwork’ than text. (Of course, it turned out to all be moot, as her university had a contract with the publisher’s parent company specifically allowing such usage.)

  10. #10 Neil B. ♪ ♪ ♪
    July 23, 2008

    To me it’s amazing that this issue hasn’t already (if it hasn’t) been hashed out. An authoritative, definitive, standard reply should logically be out there to be found wherever “official advice” is available. Anyone tried really looking for that? APS Style Manual? If not “out there” then that’s amazing and a little disappointing.

  11. #11 Matt
    July 24, 2008

    A chart is something created by a person. Data is something created by the universe, which merely happens to be recorded by a person.

    Therefore I’d say that making your own chart with someone else’s publicly published data is perfectly fine with or without permission so long as you properly attribute the data, though you should probably do them the courtesy of asking nonetheless.

    Copying an already-made chart is another kettle of fish entirely. It’s a created artistic work, and so should both legally and morally not be copied without permission in one’s published work.

  12. #12 Roman Werpachowski
    July 24, 2008

    @Matt

    “A chart is something created by a person. Data is something created by the universe, which merely happens to be recorded by a person.”

    Sure, and a photograph is merely a recording of how the world looks.

  13. #13 Peter Morgan
    July 24, 2008

    “Data is something created by the universe, which merely happens to be recorded by a person.”?!? Data doesn’t just happen. Someone has to figure out which data to record. What #12 said, but more so: a photographer doesn’t have to build their camera as well. Which requires more ingenuity, the experimental apparatus that allowed the “person” to collect the data, or formatting the graph? The comparison with photography only goes half-way to acknowledging the experimenter.

    Chad, when someone uses your data, which you obtained painfully, using an apparatus that took you weeks, months, or years to construct, do you want them to ask politely whether it’s OK to use your graph? I guess the funny thing is the awkwardness of being asked “Hey, great experiment, we love the data, can we use it? The graph sucks, of course, so we won’t be using that.” This is one of those not so rare cases where the law makes little contact with what’s right to do.

  14. #14 greg
    July 24, 2008

    for what it’s worth: when i was a TA for general physics at berkeley, a student in another lab section was booted from the class for copying his lab partner’s graph even though they produced the data together. this is a little different, but the moral is it is better to ask for permission than for forgiveness.

  15. #15 Peter Farrell
    July 24, 2008

    The polite thing to do is ask.

    Nevertheless, I am interested in the case when they refuse permission. I suspect that most universities have research policies that require you to make your data reasonably available.

    How about recreating a table by measurements taken from the original plot and making your own plot from that? Is that ok? Do you need to ask permission? I have done this for presentations many times.

    Or even more simply quoting a single value taken from the plot to compare with a value you have measured or calculated via some other method. This last case certainly requires no permission and I do not see it as fundamentally different to the case where you consider a multitude of numbers.

  16. #16 Eric Lund
    July 24, 2008

    I suspect that most universities have research policies that require you to make your data reasonably available.

    As do many journals (Nature, for one), and at least some if not all Federal funding agencies require it as well.

    Your other two scenarios would definitely qualify as fair use, as long as you properly cite the original sources. In the first case you are actually publicizing somebody else’s work, which is unlikely to diminish its value. In the second, you are showing that your method gives the same result as the other method.

  17. #17 Jonathan Vos Post
    July 24, 2008

    (0) IANAL (I Am Not A Lawyer). TINLA (This Is Not Legal Advice).

    (1) The set of number pairs that the original author used to prepare the graph cannot be copyrighted.

    (2) Their graph can be, and is (whether or not registered).

    (3) You can use the data and make your own graph.

    (4) Your graph is a derivative work (in the IP sense, not Math sense) and you copyright it (whether or not you register it).

    (5) The issue becomes what value is added. A list of numbers of state laws cannot be copyrighted. The list of state laws each with the text of the law cannot be copyrighted. A book of the numbers, laws, crossreferenced, annotated, tabulated, compared to other states, with legislative history, is typically copyrighted by a law publisher in each state.

    (6) The issue here is not Fair Use.

    (7) The academic protocol is nearly independent of the copyright law (whether USA or Berne).

    (8) Therefore make your graph, give full citation to the original, and ask after the fact in order to be polite and collegial.

    Now I’ll email this to my son, about the start his 2nd year of USC Law School and keenly involved in IP law for science and software. But he’s at San Diego Comic-Con, for the 3rd or 4th time as a registration-fee-waived 3rd generation Professional, and unlikely to answer me until next week.

  18. #18 Jonathan Vos Post
    July 24, 2008

    (10) “ask after the fact” meaning after you blog and update your draft hardcopy manuscript. Definitely ask — even though you don’t “need to” — before submitting the Complete Manuscript, let alone the Final Manuscript to the publisher, and document this for the sake of the Permissions Editor.

    (11) IANAL + TINLA, but I have been paid by publishers as a Permissions Editor, and received Copyright training from the National Writers Union when I was a 7-time elected officer.

    (12) I’ve also emailed a copyright expert in SFWA for triple check purposes.

    (13) You are correct to distinguish Ethics from Law, and I applaud the transparency of your procedure.

  19. #19 Alfred Fry
    July 24, 2008

    From 2005-2007, I was an official member of the American Library Association’s Copyright Advisory Network (www.librarycopyright.net). Anyone can post questions or answers on the forum, but there is an official CAN Team who should respond. You probably won’t get an immediate response, but you should get a response in a few days.

    Here again is the standard disclaimer: This is not legal advice.

    Fair use law is deliberately vague, and there is very little applicable case law to help define what is a fair use. Personally, I like this. I don’t think that Congress could ever make hard and fast rules that aren’t overly restrictive.

    Much of the “official” advice is produced by organizations representing copyright holders. Although I believe that they are presenting what they honestly believe to be true, I believe that most of this “official” advice is outright wrong.

    First, I’d like to make a distinction between copyright violations (making a copy) and plagiarism (claiming someone else’s work as your own). As far as I know, plagiarism is not a crime. Of course, the academic world in the United States views plagiarism as wrong. [My understanding is that in some countries, students are expected to plagiarize from experts.] Many copyright holders insist or proper attribution in order to obtain permission, and I support proper attribution, but attribution has nothing to do with fair use.

    Are charts protected by copyright? Many people say yes, but I say it depends. If the chart is a novel way of presenting data, then I would agree. However, if the chart is a basic Excel chart that involves little creativity, then I would say no. I know some journal publishers consider the charts to be separate copyrighted works, but I consider the charts we are talking about to be part of the entire article. I do not believe there is a consensus on this issue.

    This is a quick and dirty explanation of fair use.

    Title 17, Section 106 of the US Code explains all of the rights of the copyright holder. Sections 107-122 provides exceptions to 106. If your use is covered by one of these exceptions, you do not need to ask permission.

    Fair use is the first and broadest exception. Title 17, Section 107 lists four factors that are used to determine fair use. There are no clear definitions for these factors or any guidance for weighing them.

    1. Character of use (commercial vs. educational). Personally, I believe that there is a big difference between a book aimed at the general public and a book aimed at academics.

    2. Nature of work (creative vs. factual). In this case, I think this is clearly factual.

    3. Amount used (in this case, some would say 100%, I would say a fraction)

    4. Effect on market. Very controversial. I have a minority opinion. Many people say the permissions market is affected, but I say that using the permissions market as evidence for the need for permission is a circular argument. In my opinion, the effect in this case is trivial.

    I believe that this is a case of fair use, but only a judge can say for certain.

    Should you ask for permission even if it is not required? I say no. People who publish articles should expect those articles to be used, just like people giving speeches should expect reporters to quote them.

  20. #20 Matt
    July 24, 2008

    @ #12 Sure, and a photograph is merely a recording of how the world looks.

    Actually that illustrates my point perfectly. The photograph and the way it looks is owned by the photographer. The facts you can see about the thing photographed are not, at least not once it’s published.

    If I take a picture of a cloud, the rights to the picture are mine but I don’t own the fact that the cloud is cumulus.

  21. #21 Matt
    July 24, 2008

    @ #12 Sure, and a photograph is merely a recording of how the world looks.

    Actually that illustrates my point perfectly. The photograph and the way it looks is owned by the photographer. The facts you can see about the thing photographed are not, at least not once it’s published.

    If I take a picture of a cloud, the rights to the picture are mine but I don’t own the fact that the cloud is cumulus.

  22. #22 Matt
    July 24, 2008

    @ #12 Sure, and a photograph is merely a recording of how the world looks.

    Actually that illustrates my point perfectly. The photograph and the way it looks is owned by the photographer. The facts you can see about the thing photographed are not, at least not once it’s published.

    If I take a picture of a cloud, the rights to the picture are mine but I don’t own the fact that the cloud is cumulus.

  23. #23 Andre
    August 13, 2008

    I’m a bit late to the party here, but it seems that no one mentioned the copyright owner here. Most journals still own the copyright to the papers they publish, not the authors, so even if you wanted to use something with permission, the authors’ permission is irrelevant. Only the publishers can give you permission to use parts of an article. (I understand that in this case copyright does not apply and it seems like the data could be used anyway, but generally it’s good to keep in mind that for most journals you give up your copyright to them.)