Retrospectacle: A Neuroscience Blog

When Fair Use Isn’t Fair

Mark Chu-Carroll of Good Math, Bad Math has a very supportive article up summarizing my tangle with lawyers yesterday over the ‘fair use’ of a figure from the fruit antioxidant paper.

In short, I was threatened with legal action if I didn’t take it down immediately. I used a panel a figure, and a chart, from over 10+ figures in the paper. I cited and reported everything straight forwardly. I would think they’d be happy to get the press. But alas, no.

I got around them by complying, but reproducing the figures myself in Excel. They didn’t bother me anymore, as apparently thats 100% legal and ok.

But it leads me to ask the question: What really constitutes fair use? This is taxpayer-supported research, which should be available for all. If a blog properly gives credit, isn’t plagiarizing, and correctly summarizes data, isn’t that fair use?

Isn’t the point of publishing data to disseminate it, rather that lob threats at grad students who happen to be excited about it?

Updates and posts from other bloggers:
Razib at Gene Expression
Orac from Respectful Insolence
Tyler at Greedy, Greedy Algorithms
Romonov
Zuska of Thus Spake Zuska
Richard Baker of Sharp Blue
Jason Rosenhouse of Evolutionblog
Reed A. Cartwright at The Panda’s Thumb
Rebecca Hartong of Fantasies, Epiphanies, Rants …
Corey Tomsons at Thought Capital
Dan at tdaxp.com
Guru at Entertaining Research
Rob Knop at Galactic Interactions
Jen at Synthesis of Thought
Afarensis at Afarensis
John Hawks
Mike at Mike the Mad Biologist
Rory Hester at Kitchen Table Math and Parental Cation
John Pieret at Thoughs in a Haystack
RW Donnell at Notes from Dr. RW
Bill at Semnoma
Dr. Free Ride at Adeventures in Ethics and Science
Bora at A Blog Around the Clock
John Wilkins at Evolving Thoughts
Chris of Mixing Memory
Duane Smith of Telecomtally
Pith and Substance
Larry Moran of the Sandwalk

UPDATE: I was contacted by the head of the journal, resolution here.

UPDATE: Bora is cataloging all the responses around the blogosphere. Thanks Bora!

(Continued below the fold, with the threat I received….)

Here’s what I received:

——-

Re: Antioxidants in Berries Increased by Ethanol (but Are Daiquiris Healthy?) by Shelly Bats

http://scienceblogs.com/retrospectacle/2007/04/antioxidants_in_berries_increa.php

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.

Regards,

[Redacted due to resolution]
W: www.soci.org

SCI – where science meets business

Register with Wiley Interscience to sign up for free contents alerts to SCI journals (Journal of the Science of Food and Agriculture, Journal of Chemical Technology and Biotechnology, Pest Management Science and Polymer International) by email. Visit http://www.interscience.wiley .com/alerts

——-

I replied:

Dear Lisa-

Threats are not required for me to comply, all you had to do was ask. Although I am baffled as to why you would prevent the dissemination of these results given the amount of poorly-written and misleading press releases that have preceeded me. Might you grant me permission to use the two figures online? If you read my post you would see that it is just a straight reporting of the data.

Shelley Batts

———–

I received this reply:

Dear Shelly,

I am unable to grant permission, you will need to contact Duncan James at John Wiley & Sons Ltd. E: permreq@wiley.co.uk

In the meantime, we still require the images to be removed.

Regards,

[Redacted]
W: www.soci.org

SCI – where science meets business

Register with Wiley Interscience to sign up for free contents alerts to SCI journals (Journal of the Science of Food and Agriculture, Journal of Chemical Technology and Biotechnology, Pest Management Science and Polymer International) by email. Visit http://www.interscience.wiley .com/alerts .

———-

UPDATE: I was contacted by the head of the journal, resolution here.

Comments

  1. #1 writerdd
    April 25, 2007

    You were definitely within fair use rights. What a crock.

  2. #2 coturnix
    April 25, 2007

    “where science meets business” should be “where science means business (cf. Al Capone)”

  3. #3 James Hrynyshyn
    April 25, 2007

    Mark is right: what you did falls quite clearly within the conventions of fair use. I’d like to suggest that all SciBloggers join together and do something en masse — within fair use parameters, but provocative enough to draw some attention to this kind of intimidation. Perhaps we could all include one image from a journal?

  4. #4 Elf Eye
    April 25, 2007

    I think you should contact the Fair Use Project of the Stanford Law School and provide copies of the correspondence. Even if no further action is required on your part, at the very least Project staff would appreciate being informed so that they can keep track of the kinds of threats are being made as they continue to develop strategies for safeguarding genuine fair use. They recently had great success in the case of Shloss v. The Estate of James Joyce. The link: http://cyberlaw.stanford.edu/taxonomy/term/374

  5. #5 Elf Eye
    April 25, 2007

    That is, “the kinds of threats that are being made.”

  6. #6 J-Dog
    April 25, 2007

    Looks like the “bully mentality” is not just limited to Republicans. My thougt about this is that Lisa is just a low-leval flunky however, and it is probably someone higher up on the food chain that is the real butthead.

    SCI: Where Science Means Bureaucracy

    I think that they are an excellent candidate for a visit from The Spanish Inquisistion.

  7. #7 Shelley
    April 25, 2007

    J-Dog, as we all know, no one expects the Spanish Inquisition, so thanks a lot for tipping them off!! :D

    Seriously though, this is very disturbing to me as it affects ALL bloggers who wish to blog primary data. I agree that Lisa is probably just the go-between, but they fact that I emailed the real ‘higher-ups’ and received no response isn’t heartening.

    I think perhaps what the real issue here is that they were afraid I might bust their ‘press bubble.’ This study has been used as a justification for ‘fruity alcoholic drinks are health food’ and the spin was so ubiquitious throughout news venues it obviously was released that way.

    The real results do not support that conclusion. I didn’t want to be an asshat and point that out directly, as readers could draw their own conclusions from the data. However, as far as I know, this is the only place on internet that addressed the real data as it stands and posited the paper’s actual conclusions: that alcohol may offer a tiny increase in antioxidant levels, but its methyl jasmonate that was the real sighnificant star of the paper. Alcohol acutally had no effect on the decay of fruit as compared to controls (no treatment).

  8. #8 John McKay
    April 25, 2007

    It’s not unusual for corporate lawyers to issue these kinds of threats that far overstate their copyright and trademark rights. You were probably well within recognized fair use boundaries and their threats therefore not enforceable. Their usual approach is simply to ignore fair use, treat any use as the thin end of the wedge leading to the loss of all control, and practice zero tolerance, shotgunning these letters out at the drop of a hat. Basically, they are very lazy lawyers.

    But don’t take legal advice from me, contact the Fair Use Project and get an expert opinion.

  9. #9 romunov
    April 25, 2007

    Let your wallet talk. Switch to Open Access. That’ll get ‘em thinkin’.

  10. #10 hibob
    April 25, 2007

    Also submit the story to Cory Doctorow at boingboing.net. They are more than a little proactive on fair use over there …

  11. #11 Shelley
    April 25, 2007

    Can someone submit it for me? I don’t know how. :(

  12. #12 Tyler DiPietro
    April 25, 2007

    Shelly, I have my own post on this here. I’m sorry you had to endure this sort of encounter with these bullies. I encourage everyone to spread the word around!

  13. #13 Narc
    April 25, 2007

    I would also suggest forwarding this to the Chilling Effects Clearinghouse

  14. #14 Orac
    April 25, 2007

    Can someone submit it for me? I don’t know how. :(

    I took care of it, but Cory’s more likely to notice if several people submit it…

  15. #15 Mustafa Mond, FCD
    April 25, 2007

    I think the plug at the end of the e-mail is hilarious. I know various people who work for corporations who get that stuff tacked onto their e-mails, but putting it on letters threatening legal action? Tacky, tacky tacky.

  16. #16 Bram Cohen
    April 25, 2007

    Yes, it’s absurd that this material isn’t freely redistributable. But it isn’t the authors who are restricting it, it’s the journal. For some odd reason, academics continue to put up with the journal system in which they submit material, and referee works, all at no cost, so that the material can then be owned by a private journal. What you really should be upset about isn’t the extent of fair use, but the current practices of journal ownership, which as someone who is involved in the process you have some influence over. Physicists and Computer Scientists are getting their act together to stop giving heaping mounds of money to journals in a manner which actually inhibits publication, hopefully biologists will as well.

  17. #17 Shelley
    April 25, 2007

    all at no cost

    Actually, most journals require a ‘page fee’ with addition fees for things like color figures (hundreds of dollars per figure.)

  18. #18 John Pieret
    April 25, 2007

    Stanford also has a very good website explaining copyright issues that is geared towards non-lawyers.

    You have the classic bind, however. They can afford lawyers and are counting on your not being able to. Free speach advocates might be willing to intervene on your behalf but counting on that is, at the very least, a scary option.

  19. #19 Miles
    April 25, 2007

    These people are idiots who are wholly unfamiliar with copyright law.

    I would have left it up there and played footsies with their lawyers.

    In fact I think I’ll go write a review of some of their articles and copy and paste some of their graphs and such. I’d love to have some ignorant lawyer threaten me.

  20. #20 Lab Cat
    April 25, 2007

    Sigh, it would be a food science journal to make such a silly fuss. I guess I won’t be submitting anything to them for a while.

    I’ll see if I know any one on the editorial board and raise the issue with them.

  21. #21 Shelley
    April 25, 2007

    Lab Cat, you’re my hero! :)

  22. #22 Dan tdaxp
    April 25, 2007

    Fight this. Put back the original images, or write a new story with the images outlining which Wiley Interscience had a problem with.

    You can win. Kat Coble did when JL Kirk threatened her just a few weeks ago (google for that company’s name). I did when NationMaster threatened me.

    It’s too early to surrender. Don’t let them SLAPP you.

  23. #23 Brooks Moses
    April 25, 2007

    One other suggestion that nobody has made yet: I would suggest sending a polite letter and copy of the correspondence to the authors of the paper.

  24. #24 Neil
    April 25, 2007

    Unquestionably fair use.

    But I doubt an English Editorial Assistant has much knowledge of US Copyright law. My guess is she’s just doing what she was told to by an equally clueless boss.

    At this point, it hasn’t even reached Wiley’s legal department. At least then you’d hope people would know what they’re talking about.

  25. #25 VJB
    April 25, 2007

    Yes, sadly true. BTW, Elsevier owns everything I’ve ever accomplished. At least in the various proceedings I don’t get hit with page charges. Really makes you want you to hand them their asses (or apparently arses in the case of Wiley) on a plate. The authors simply don’t come into it. They CAN’T grant permission to reproduce their own published work. Ok, if they had disseminated a pre-print, it would work (and my own preprints are all I can legally put up as pdfs). Lot of issues here, folks.

  26. #26 Rob
    April 25, 2007

    UK Copyright law doesn’t have an allowance for fair use.

    http://www.swarb.co.uk/lawb/ipFairUse.shtml

    http://www.out-law.com/page-6919

  27. #27 peter irons
    April 25, 2007

    Shelley,

    As a lawyer (although I’m not a copyright specialist, I’ve dealt with the “fair use” doctrine in my own publications) I can tell you three things: 1) it’s almost certain that you haven’t exceeded or violated the “fair use doctrine” under US law, especially since you’re not profiting financially from your use of this one figure; 2) since this journal seems to be based in the UK, it would make it difficult and costly for them to pursue this in US courts; and 3) these kinds of blustering threats are often made and hardly every followed up on. This Lisa person does seem to be a low-level flunky, and I wouldn’t worry about this. If you do get a threat letter from an actual law firm, why don’t you post it and I’ll give you what advice I can.

  28. #28 Jennifer
    April 25, 2007

    Just FYI in the future: I work in the science print media, and have dealt with the copyright permissions departments of many publishers, and most are happy to grant permission to use a figure from an article for free. You just have to ask in advance. Usually they just require a copyright acknowledgement and citation of the paper. And 30 hours isn’t really that long a turnaround time. It usually takes them a few days to get back to me.

    Also, by the way, the one exception to publishers holding copyright is the Nature journals, where the authors retain rights to their figures, so in that case, you would have to contact the corresponding author for permission.

  29. #29 John Pieret
    April 25, 2007

    Hey! Guess what! There is one of those “For Dummies” books about copyrights:

    Patents, Copyrights & Trademarks For Dummies

    And guess who it is published by:

    Wiley Publishing, Inc., which is an American subsidiary of … you got it, John Wiley & Sons, Ltd..

    Looks like a slight adjustment in the title is necessary: Patents, Copyrights & Trademarks BY Dummies.

  30. #30 Shelley
    April 25, 2007

    Patents, Copyrights & Trademarks BY Dummies.

    Thats just TOO good. More fodder for the piling-on party tomorrow.

    Please take part!

  31. #31 Gary Hurd
    April 25, 2007

    How about professional scientists refuse to publish with Wiley, or John and Sons? We could refuse to recommend Wiley journals to our library acquisition department. I’ll do my best not to even read them.

  32. #32 John Pieret
    April 25, 2007

    Here is another post for your collection. You might like the illustration.

  33. #33 Shelley
    April 25, 2007

    John: That picture was beeee-utiful! Brought a tear to my eye (of joy). :) Thanks for the support.

  34. #34 Bill
    April 25, 2007

    You just have to ask in advance

    Why the hell should you have to? Romunov and Gary Hurd have it right: researchers should simply pretend that non-OA journals do not exist, as much as they can. Never publish in non-OA journals, never cite a non-OA article when you can find an OA alternative. Don’t be intimidated by people telling you “you’ll never get tenure if you don’t have a Nature or Cell paper” — bullshit, or if true, then that department is a dinosaur and you are better off elsewhere. If you have really top-flight work, publish it in PLoS Biology; anything less sexy can go to other PLoS journals, or BioMed Central, or Hindawi, or any of a dozen other alternatives. The more researchers support OA publishers, the less blood parasites like Wiley get to suck out of us.

  35. #35 Andrea Bottaro
    April 25, 2007

    Shelley, the Journal of Science of Food and Agriculture has an impact factor of 0.99. That is, your blog entry on those findings probably already had more readers than the original article would ever hope to get.

    They should pay you, not threaten you. What a bunch of fools.

  36. #36 ds
    April 25, 2007

    People should from now on not submit any paper anymore to the “Journal of the Science of Food and Agriculture” in particular, and not to Wiley in general anymore.

    Not submitting to this specific journal is no problem for me, b/c it is not in my field, however, for Wiley in general, my boss decides. :(

  37. #37 Jennifer
    April 25, 2007

    This topic obviously ruffles feathers.

    After I posted my original comment, something was still nagging at me, and it took me awhile to figure out what it was. The thing that is bothering me in this situation is the jump-on-the-bandwagon, mob mentality that seems to be sweeping ScienceBloggers on this issue. Before transitioning into science journalism, I worked in academic labs for seven years, both as a student and postdoc; I understand the desire to cast journal publishers as the big baddies and bash their “corporate” image (which is, of course, the antithesis of free and open scientific thought, right?). Ask yourselves: would there be this big of an outcry if an author had asked Shelley to remove copyrighted material?

    The way I see it, there are two separate issues that are being debated here and on various other ScienceBlogs: 1) Should Shelley be able to use images from this paper without having to ask for permission; and 2) Should journals own the copyright to figures that they publish? Let me address these two points separately.

    On the first point, the term of “fair use” has been thrown around, and I’ll admit, I know very little about this. Because I work for a publication that makes money from the use of the art, we always have to obtain permission. Every link that I’ve followed from the various blogs discussing this topic seems to indicate that “fair use” is a somewhat murky concept; you are never sure that what you are doing is really “fair use” until you have gone through legal action and lots of money.

    Whether you like it or not (see point 2), Wiley owns the copyright on these images. The authors in this case have chosen to publish in a journal where the rights are assigned to the publisher. It seems to me that it would be a polite, nice, and easy thing to do to simply ask for permission from the get go and save yourself a lot of the hassle.

    In Shelley’s situation, she has asked for, but not yet obtained permission to reproduce these figures. Just because she hasn’t yet heard from Wiley does not mean she won’t. I think that the blogosphere should put away its pitchforks and torches until the publisher either 1) asks Shelley to pay to use the images or 2) outright refuses to grant copyright permission. I don’t know how Wiley is going to jump on this; I’m interested to see if they treat Shelley any differently than they treat someone with “real” journalistic credentials.

    And, by the way, the deductive leap that many have made from “Wiley doesn’t want Shelley to use copyrighted material on her blog” to “therefore Wiley doesn’t agree with her conclusions” has absolutely no evidence backing it up. I have never once had a journal publisher ask for any sort of editorial control over what I write in relation to a figure of theirs. It just doesn’t happen.

    The second point, whether publishers should hold copyright to what is published in their journals, is a thornier issue. Again, I would ask you to think of it a different way: What if it was your research figures that someone had appropriated and was using without your permission (and not just in the innocent way that Shelley did)? Would you want to spend the money to fight that fight yourself or would you want the publisher’s “army of lawyers” out there fighting for your work? That’s what you would give up by keeping copyright.

    Like I said, I understand the frustration with being charged to access research. Now that I am out of academia, I actually have a harder time with access to journals and there are often papers that I would like to access, but can’t. So I would agree with everyone that publishing in open access journals is a great idea; the more people who publish there, the more legitimate these journals will become in the eyes of tenure committees.

    Thanks, Shelley, for letting me post this long comment. I don’t have a blog of my own, and apparently I had a lot to say about this.

  38. #38 Rory Hester
    April 25, 2007

    I just blogged about it. This reminds me of a recent controversy over breast feeding.

    All we can do is to let people know about it.

  39. #39 Julia
    April 25, 2007

    Jennifer, I agree with you.

    Shelley, you said,

    If a blog properly gives credit, isn’t plagiarizing, and correctly summarizes data, isn’t that fair use?

    Perhaps. But you did more than summarize data. You copied some portion of the original article’s organization and presentation of that data. Also, the fact that you have made no money from this is not a guarantee that the copyright owners have not lost money because of it. And of course it isn’t even clear that you will never make money from this. Your posts, including this one, may add to your reputation, eventually resulting in jobs and/or higher salaries than you would otherwise have gotten.

    I’m sorry that you had this unpleasant experience, but not surprised. Certainly information on the published data can be repeated as part of fair use, but the organization and presentation of that data (including photos, charts, graphs, diagrams, etc.)can be, in my experience, subject to copyright protection.

    In three decades of teaching and editing technical writing in schools and in businesses, I was careful always to advise the people I was working with to obtain written permission before duplicating any part of any sort of image, including photos, charts, graphs, and diagrams. In fact, my usual advice was to pull out the data and either present the relevant data in ordinary sentences or else draw a completely new sort of visual. I’ve seen, and heard about, people being successfully challenged legally when they imitated organization and presentation in addition to summarizing and commenting on the data and interpretations of the original.

    All the people upset by what happened to you may possibly be quite right in wanting to be able to use charts, etc. from the original, but I think it’s important that no one assume that anyone at the Journal of the Science of Food and Agriculture or at John Wiley & Sons Ltd. has done something outrageously unusual in asking that the article’s original images not be copied (even in part) without permission. Jennifer is quite right that such permission is usually quick and easy to get, and is commonly requested.

    I hope this event might lead to a fruitful discussion of fair use without making the copyright owners out to be villains of some sort.

  40. #40 Bill
    April 26, 2007

    Whether you like it or not (see point 2), Wiley owns the copyright on these images.

    And whether you and the rest of the publishing world like it or not, you will never own copyright on anything that (for example) I make — because I won’t publish with you, unless you convert to OA.

    The traditional model is dead, it just refuses to lay down.

  41. #41 Tyler DiPietro
    April 26, 2007

    “And of course it isn’t even clear that you will never make money from this. Your posts, including this one, may add to your reputation, eventually resulting in jobs and/or higher salaries than you would otherwise have gotten.”

    And they wonder why people hate lawyers.

  42. #42 Bill
    April 26, 2007

    My blog response is here (I have an old MT install which does not cope well with trackback), and I sent Ms Richards email inviting her to peruse it.

  43. #43 windy
    April 26, 2007

    …I think it’s important that no one assume that anyone at the Journal of the Science of Food and Agriculture or at John Wiley & Sons Ltd. has done something outrageously unusual in asking that the article’s original images not be copied (even in part) without permission.

    This may be within their legal rights, but it IS outrageously unusual.

  44. #44 John Pieret
    April 26, 2007

    What I think has brought out the pitchforks and torches is the manner in which they handled it. Wiley has an easy and utterly inexpensive way to monitor the situation (i.e. Shelley wasn’t printing up something in her basement — it was right out there a couple of clicks on a computer away); it cost Wiley nothing but a few electrons to send the email and there was no danger that the great public stampede to buy this journal was going to be stemmed by the copying of one small part of it in a blog post that probably doubled the world’s awareness of this rag the moment it went up.

    There was no need to start off with threats about lawyers. It is exactly the sort of corporate/bureaucratic mentality that deserves a little prod and singe. They are trying to sell a product and we are well within our rights as consumers to tell them we don’t like it. And we have a duty, if we want to live in a civil society, to let them know it in the most certain terms.

  45. #45 Nigel Depledge
    April 26, 2007

    Hey, I’ve been to a meeting at the SCI HQ in Belgrave Square. It’s a really nice building in a really up-market part of London (“One’s Bentley is all nice and shiny because one has a man to look after it” kind of area).

    Obviously, they have to be leery about giving anything away for free, because upkeep of the HQ building must cost them a packet!

  46. #46 Moses
    April 26, 2007

    You are within fair use. I don’t know if the ACLU would take you on. I don’t know if you could find a pro-bono attorney in this area.

    Honestly, though, a guy used Wikipedia to refute one of these idiots (generic sense) and when they didn’t cease and desist, I think an ACLU lawyer took care of it in one scathing letter pointing out that the people in Wikipedia had a better grasp of Copyright Law than they did…

    Put it back up. Make your stand. If you don’t, they’ll push you around forever.

  47. #47 coturnix
    April 26, 2007

    I am also keeping a complete list of links about the story.

  48. #48 steve
    April 26, 2007

    “You copied some portion of the original article’s organization and presentation of that data”
    I believe I just copied your published words. Are you going to sue me?

  49. #49 grumpy
    April 26, 2007

    Shelley,

    You may have an unexplored resource — as is perhaps suggested by their pioneering participation in the Google Books project (all the way to Mary Sue Coleman), the University of Michigan takes issues of intellectual freedom and fair use very seriously indeed. And they have the lawyers to make it stick.

    Given your affiliation with UM as a doc student, it might be worth sending a nice note about your situation to Jack Bernard of the University Counsel’s office. I’m only speculating, but he might find writing a nice FOAD letter to Wiley a welcome change from dealing with RIAA paperwork.

  50. #50 Andrew W
    April 26, 2007

    @Neil: You’re absolutely right about the assistant. I worked for an academic publisher and know that one of two things happened. Either Wiley lawyers forwarded their concerns to the editor and E.A. to handle, or the editor told his/her E.A. to periodically search for websites using Wiley material and to send a boilerplate shot-across-the-bow.

    Whichever it is, it’s mildly embarrassing for Wiley to be proven not only wrong legally but shortsighted professionally.

  51. #51 Mr Miles
    April 26, 2007

    Does Wiley publish ALL Dummies books? I’ll have to check into that, if so I’ll never buy another one again.

  52. #52 Alvin
    April 26, 2007

    I’m a young scientist myself (just defended in the past year), and I support projects like PLoS and Pubmed Central. I teach, do seminars, presentations of my work, journal clubs, etc. and I use other people’s published and unpublished data all the time. As I am sure you know, this is common practice. As long as it’s cited, nobody has trouble with a copy & paste from any journal.

    However, I recall that when I was writing my thesis I was cautioned that I couldn’t even use figures from papers that *I* had published previously; I’m talking about papers where I am the first author. This was because the thesis was going to be published (a requirement for graduation). I had to ensure that the figures were somehow different from the ones in the paper; I could use the same data, but I had to make (e.g.) the bars gray instead of black or crosshatched horizontally instead of diagonally. Hell, even a different font counted. I also know that when I went to conferences, if I made a poster I couldn’t use previously published data, but if I gave a talk I could use whatever I wanted.

    Anyway, keep up the good work; it’s nice to see people that are trying to make science accessible to the general public in a sane way. Oh, and try Prism from GraphPad software; much better for making your figures than Excel.

  53. #53 Jen Cardew
    April 26, 2007
  54. #54 drcharles
    April 26, 2007

    i just love the blogosphere. viva la revolucion.
    thanks for the excellent post, the informed commentary.

    i was watching a program on pbs one night about the fall of the media, especially print newspapers, as the explosion of web 2.0 drains advertising money from the traditional sites. one question posed was whether or not the quality of original reporting will continue to decline as newspapers shrink, as everyone relies on AP/Reuters regurgitations, and that sites like google news are actually damaging parasites.

    but i think most bloggers exist to amplify quality reporting, and occasionally bust out with a great story missed by the mainstream press. the decline of staff writers at major newspapers is troublesome, though. i guess this only relates to your post in that you were doing a fine job amplifying an article that none of us would have read anyway, and the fearful folks at the traditional journal overreacted defensively. But why not look at a fair use piece as a partnership that benefits both parties?

    And the whole “my lawyer” thing was disgustingly tacky. what is wrong with that lady’s humanism?

  55. #55 natpoor
    April 26, 2007

    Jennifer and Julia, you know NOTHING about copyright law, and it is people like you that help further erode our rights. What you say makes me so angry, because you are so uninformed but act like what you say is correct, even though you have absolutely no reason to believe it is. It seems you have the attitudes you do just because it seems like the safe thing to do and you don’t want to upset the copyright holders. This has nothing to do with the actual law and our actual rights! YOU DO NOT HAVE TO ASK if your use falls within the definition of fair use. Publishers love to say that it does, they are lying, completely, 100%, and they know it. Shelley, why don’t you repost the images so we can all post them and then we can also email Wiley about it. I’ve taught a class in free speech (where we looked at copyright, among other things) so I know what I’m talking about. If we don’t defend our rights, they will be taken away.

  56. #56 A guest
    April 26, 2007

    I haven’t read every response, but I didn’t see anyone actually do a fair use determination using the four factors:
    (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.

    (1) Clearly non-profit educational. Clearly in your favor.
    (2) Almost totally factual, non-creative. Clearly in your favor.
    (3) A tiny fraction. Clearly in your favor.
    (4) No market effect, as proven by your workaround. Clearly in your favor.

    This is absolutely fair use. Although it’s true that only a judge can make an authoritative fair use determination, I cannot imagine any compelling argument that this isn’t fair use.

  57. #57 Jacob Blair
    April 26, 2007

    The coldness of Wiley’s interaction has been well-covered. It seems to me that this is more a case of what a blog’s role in media/education is. I’d like to note this, though: you have an ad atop your page. In effect, you make some (alibeit little) money from your blog posts. In my understanding, that would mean that copying copyrighted content requires permission beforehand, whereas creating content from the information (what you finally did) does not. This is an interesting (and important) discussion about the wide utility that blogs are and where they stand in the media world, but it’s being drowned a bit in other arguments of open access and Wiley’s business style.

  58. #58 surferchick
    April 26, 2007

    University of California has an Office of Scholarly Communication, and they are drafting guidelines for copyright to scholarly papers.

    See at http://osc.universityofcalifornia.edu/

    Basically, they are describing copyright as a “bundle” of rights. Some can be given to the publisher (i.e. right to first publication), and some can be retained by the author to place a copy in a university repository (hello, Google Scholar) or on an author’s web page. They are experimenting giving this more bite. Perhaps UC owns the repository copyright? Then the publishers beef is with UC, not the authors themselves.

    There will be forms/staff to help authors communicate copyright with publishers.

    Right now, there’s an opt-out clause for the author which weakens the whole thing, but it’s still a huge step forward.

    And some publishers DO allow pre- and sometimes post-prints of articles to a repository (even Wiley!). You can see which are copyright “green” at http://www.sherpa.ac.uk/romeo.php

    The Digital Millennium Copyright Act did MUCH damage to Fair Use in the digital realm.

  59. #59 Sarah Cooney
    April 26, 2007

    Dear all

    I am Director of Publications at the Society of Chemical Industry, owner of the journal in question (JSFA).

    There has been a misunderstanding with this issue, inadvertently caused by a junior staff member at our Society. Our official response is below:

    ‘We apologise for any misunderstanding. In this situation the publisher would typically grant permission on request in order to ensure that figures and extracts are properly credited. We do not think there is any need to pursue this matter further.’

    I have written to Shelley to clarify that this was a general misunderstanding, and she has been happy with my response.

    The journal in question is owned by the Society of Chemical Industry. We work in partnership with Wiley to produce our journals.

  60. #60 Steph
    April 26, 2007

    Put them to the trouble of paying their lawyers to send you a proper cease and desist letter. You’ve used due diligence to get permissions. I think the best response when threatened is to fight back and resist (keep those charts up). It should have to be more difficult for them to force you to comply than for you to comply.

    What will they do then? Sue you for damages? They’re just being bullies, trying to force you to give up your “fair use” rights.

    So far you’ve only received a threat from an assistant assistant lizard. The real lizard attorneys haven’t even started running the clock.

    Just a thought – the true risk is just money and annoyance.

    Steph

  61. #61 Julia
    April 26, 2007

    Steve,

    “You copied some portion of the original article’s organization and presentation of that data”
    I believe I just copied your published words. Are you going to sue me?

    No, I’m not.

    1. I didn’t try to register a copyright for my comment. The owners of the article in question do have such a copyright. That suggests a major difference in our attitudes.

    2. The very comment you quote answers your question. While fair use normally allows you to briefly quote text for the purposes of adding something (adding your own interpretation and discussion, as you did above), simply imitating the organization and presentation of material without adding anything of your own (for example, the organization of data into some sort of image) may be treated differently in the legal system. It is conventional to ask for permission to duplicate organization and presentation techniques, and normal for permission to be granted. As the Wiley response to Shelley (posted this morning) says, “In this situation the publisher would typically grant permission on request in order to ensure that figures and extracts are properly credited.”

    So the end of this seems to be that Shelley asked for permission, not to comment on the article and its contents, but to extract and use a part of the original presentation technique (a usual expectation in business), and permission was apparently granted (the usual result of asking). It’s unfortunate that the wording of the original message she got was less than the friendly, informative comment it probably should have been. In my opinion, she’s right to object to the tone of that message, and I’m glad that the Director of Publications at the SCI seemed to apologize for that.

  62. #62 Kristjan Wager
    April 26, 2007

    1. I didn’t try to register a copyright for my comment. The owners of the article in question do have such a copyright. That suggests a major difference in our attitudes.

    Copyright is not something you have to register for. This is a myth. If you write something, and don’t sign away your copyright, you have the copyright. In other words, you have to do something active to not have copyright over your work.

  63. #63 Julia
    April 26, 2007

    Copyright is not something you have to register for.

    Indeed it isn’t, and I wasn’t meaning to talk about a difference in copyright protection effect. I was expressing a difference in apparent attitudes evidenced by the fact that I did not include in my comment any reference to a claimed copyright, while it seems the article copyright owners have been very explicit about that claim. Sorry to be unclear, and thank you for pointing this out to anyone who may have believed the myth you speak of.

  64. #64 Jake Young
    April 26, 2007

    I’m with you. This is nonsense. Am I going to have to contact someone everytime I want to talk about a paper?

    Here is my post on the subject.

  65. #65 bowerbird
    April 26, 2007

    darn, i wish i hadn’t read all the comments to the bottom,
    so i wouldn’t have seen the apology from the publisher…

    because i _love_ to see big companies acting like asswipes.

    -bowerbird

  66. #66 William
    April 26, 2007

    After publishing several papers in journal literature over the previous decade, I have had several first-hand experiences with so-called “fair-use” abuses, in which people have appropriated my work without permission, sometimes without citation. I have even had to stand by and watch colleagues acquire grants using my work–particularly illustrations–in their proposals. More recently, I have been involved with the publication of a government report at a prominent east-coast university in which all the figures were cribbed, unreferenced, from prior publications; I had to redo most of the figures in three days to protect some colleagues, who should know better, from litigation. As a researcher and college professor, I have neither the time nor the capital to invest in protecting my own academic achievements; with all due respect to Bill’s personal choice regarding Wiley, I am pleased to let journal publishers guard my hard work for me.

    I have seen “fair-use” bandied about here both in general and in the four-prong legalistic sense, and I’ve seen several interpretations posted, but the critical issue is missing–those figures are artwork, and they belong to someone else, in this case Wiley. They reserve the right to profit from them. Citation, as Shelley has clearly done, obviates any accusation of plagiarism, but citation does not constitute fair use of original, published artwork. Fair use law does not shield the facts (the data values) or the ideas (such as the layout of a plot) but it does specifically shield original presentation, especially illustration. Shelley violated Prong 3: substantiality. She has co-opted the facts, interpretation, and most importantly the presentation by displaying the figures, which essentially depict the heart of the paper. By doing so, she also impacted Prong 4: effect on work’s value, by disseminating the heart of the paper’s message for free, impacting the journal’s right to profit from their protected material. Natpoor’s rant and some of your other “informed” guests have it aggregiously wrong–posting those illustrations was not fair use, Wiley was within their rights, and such incidents of, as John P put it, “boilerplate warning” are routine and designed simply to get your attention. The public clearly has a range of interpretations of fair use law–some of them obviously founded more on ideals or passion than on reason–but ultimately whether Shelley was right or wrong would have to be left up to a court… and while some of the above posts seem excited to have her waste her time and effort there, I’m sure she’s got better things to do.

    In addition, ethically, posting those figures is co-opting someone else’s hard work without permission. Look at it this way: If *you* had gone to the effort to collect, analyze, and present complicated data in figures, say from your dissertation, would you want to walk into a talk at a conference and find someone you don’t know presenting them? While I certainly champion the dissemination of knowledge–I couldn’t be an educator otherwise–it costs a presenter very little time to do a new rendition of a figure, or to write and ask for permission to display an existing one. You’d do it for images from a painter or a photographer; what difference does it make who the owner is? As demonstrated, it isn’t that hard or time-consuming to err on the safe side, and no one, not even the original researcher, gets hurt.

  67. #67 Gerard Harbison
    April 26, 2007

    It appears I’m late to the party as usual. I’m leaving this up, anyway; it says some things I wanted to say for a while

  68. #69 Luna_the_cat
    April 26, 2007

    William:

    Under every definition of “fair use” that I have ever seen, or worked with, using a properly attributed set of illustrations from a paper or other published work, for the purpose of review and analysis, is “fair use”. You are wrong. To have to do up different graphs, in different format, in order to analyse the soundness of the science behind them — rather than use the graphs which the authors themselves create — is ludicrous, and I have never seen it called for before, even in very hostile exchanges.

    You are wrong. This is not an issue of plagiarism. This is an issue of being able to put someone’s work to review. And even the publisher has now agreed.

  69. #70 Gerard Harbison
    April 26, 2007

    William’s comments are pretty clueless about the realities of scientific communication. He asks

    Look at it this way: If *you* had gone to the effort to collect, analyze, and present complicated data in figures, say from your dissertation, would you want to walk into a talk at a conference and find someone you don’t know presenting them?

    The answer is, not only do I want it, but when it happens, I’m delighted. It’s rather routine in a scientific talk to review the existing state of the field, and people often do this by showing crucial figures from significant previous work. When someone thinks my work is importnat enough to show in one of their presentations, I’m usually over the moon.

    Of course, it needs to be properly cited, but in a conference, if it weren’t, a few score people would immediately draw attention to that.

  70. #71 William
    April 26, 2007

    As I clearly stated in my post, Shelley *did* properly attribute the illustrations she presented–she did not plagiarize the work. The issue is–and this is the issue that Wiley brought up–that attribution is not sufficient to forestall violation of fair use. The journal may have agreed to let her post those images; that is their perogative and has no bearing on the interpretation of fair use law.

  71. #72 Owen
    April 26, 2007

    Shelly – while what you did is clearly fine in my opinion according to fair use you should be aware that the only legal judge of fair use is actually that – a judge in a lawsuit – there is NO legally solid easy to understand and use definition of fair use (kind of ironic). In reality I am certain you would pass because for more egregious usages usually pass. Last I heard, the usual understanding is that under 10% or so of the original work can be excerpted without worry.

    However, I do think you could have done one thing better. Unless you took it down after their original complaint and I never saw it, you should have linked to the abstract online – that is only fair. It is there since I found it pretty easily.

  72. #73 windy
    April 26, 2007

    It seems that William is confusing research ethics with copyright issues.

    I have even had to stand by and watch colleagues acquire grants using my work–particularly illustrations–in their proposals.

    So if your colleagues screw you over, but use redrawn figures, is that any better?

    A grant proposal is not a publication, so I’m not sure if a legal copyright wrangle would have helped anyway.

  73. #74 William
    April 26, 2007

    Gerard:

    As a veteran of academia and a conference-attendee for 20 years I am of course delirious with joy when my published work is presented as introductory material in a talk, and I’m generally pleased to see work freely distributed. If the figures to which I referred in my example had been (1) published work or (2) properly cited or (3) included as preamble, I’d have joined in the debate with relish. My choice of example was deliberate: dissertations are gray literature, not technically published in most cases and usually not widely known. The onus of protecting one’s own dissertation work–data, figures, and concepts–rests entirely on the student. Perhaps our differences may stem in part from differences of temperament (or level of bloodthirst) among different fields of research; I don’t have quite the faith in my audience that you do. Whatever the case, my point with the example was intended to state that ethically, one should ask before borrowing something that belongs to someone else, whoever that someone else might be. If not common sense, surely first grade taught us all this.

  74. #75 Gerard Harbison
    April 26, 2007

    Whatever the case, my point with the example was intended to state that ethically, one should ask before borrowing something that belongs to someone else, whoever that someone else might be. If not common sense, surely first grade taught us all this.

    William:

    I think you brilliantly illustrate the success of the ‘intellectual property’ meme. ‘Intellectual property’ is not real property. ‘Intellectual property’ is a license grated by the state to encourage innovation. Where it does not encourage innovation, its primary purpose is missing.

    Ideas are like mail. Once transmitted, they belong to the recipient.

    My field, magnetic resonance, is reasonably competitive. But the major players do stay up with the field, and claiming credit for someone else’s idea, once it’s been talked about at a meeting or published, would simply be impossible.

  75. #76 Luna_the_cat
    April 27, 2007

    William:

    Shelley used part of someone’s work, including graphics, with full attribution and in order to review it and analyse the soundness of the work.

    Your “counterexamples” involved simple plagiarism or the dangers of republishing one’s own work, not as a review, but as a reuse. Your particular bugbear, however, seemed to be the issue of lack of proper crediting.

    In other words, your argument deals with something else entirely. You weren’t talking about “fair use” for the purposes of review, were you. Your counterexamples are irrelevant for the situation Shelley was faced with.

    Details are important. Making sure than an “analogous” situation is actually analogous is a rather important detail. As a veteran of academia, you should know that.

  76. #77 Ernest
    April 27, 2007

    Owen,
    It was not 10% of the work that was copied, but 100%–since graphs, tables, and other figures can constitute protected works themselves, independently of the work they are included together with. Still I’m glad to see the publisher has dropped the matter.

  77. #78 William
    April 27, 2007

    Luna:

    Perhaps you didn’t read my first post carefully. Purpose of review is only one prong of the four involved in determining fair use of an item. While it is true that my experience with fair use violation *also* has occasionally involved plagiarism, the *entire second paragraph* of my original post is on point, describing the way in which Shelley’s application of the figures break the fair use rules. “For the purposes of review” may be necessary and sufficient to pass the first prong of the fair use test; it does not obviate the need to pass the other three, and that is where Shelley’s application failed. For the third time–just because you attribute the work, just because you want to academically review and critique the work, does *not* mean your use of it constitutes fair use.

    The issue that many readers here fail to grasp is that those IMAGES are owned property, and they are separate entities from the paper in which they appear. They, unlike the ideas that Gerard describes as mail, are not free; each one belongs to Wiley. As Owen states–Shelley placed at least one complete figure on the website. Each figure is a copyrighted entity unto itself, not just part of the paper it appears in; as such, she violated prong three by reproducing an entire work. This is why, when Shelley later posted redrawn figures, Wiley was contented. They weren’t out to censure ideas or control her critique; they were protecting their property.

    In fact, fair use law itself is really not relevant here either. Wiley was within their rights to request that the illustrations be taken down, even if her application DID constitute fair use. They own them, they get to say. As we’ve seen, Shelley’s cease-and-desist order came down through a routine check and recieved the standard warning. Once she asked permission, one interchange with someone further up the chain snips the red tape and Shelley gets what she wants–the ability to post. Where’s the harm in all this? Who got hurt? We’ve spent more time and passion arguing about whether it was fair use than it took Shelley to get permission from Wiley.

    I wouldn’t, however, read too much into their apologetic tone on the response to Shelley’s request; although it could be genuine, it costs them nothing to appear conciliatory. After all, the initial threat did its job in securing them your attention. By then, they already had what they wanted.

  78. #79 Josh
    April 27, 2007

    This is a duplicate of my post on another blog. I’m including it here not because I think I’m right and you’re wrong, but because there is another way to look at what was copied. Was the use fair? I don’t know, it depends. BTW, the existence of a contractual relationship defining acceptable use pretty much moots the entire fair use discussion.

    ___________

    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)

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    December 26, 2008

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  91. #92 College Grants for Mother
    September 16, 2010

    What you really should be upset about isn’t the extent of fair use, but the current practices of journal ownership

  92. #93 knutselen
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  93. #94 bizconnmedia
    December 20, 2010

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  94. #95 gebze evden
    June 30, 2011

    This is a duplicate of my post on another blog. I’m including it here not because I think I’m right and you’re wrong, but because there is another way to look at what was copied. Was the use fair? I don’t know, it depends. BTW, the existence of a contractual relationship defining acceptable use pretty much moots the entire fair use discussion.
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