Brief thoughts on Fair Use

My Scibling Shelley has gotten into and out of a bit of fuss while I’ve been incommunicado. She posted about a paper discussing the role of alcohol in protecting antioxidants in fruit. As so many of us have done, she posted a graph and table from the original paper to illustrate her description of the study. Wiley Interscience complained, but has, thankfully, buckled to their obvious wrongness.

To me and most observers, what Shelley did is an obvious instance of “fair use,” as described by U.S. law:

the fair use of a copyrighted work ? for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include ?

(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.

This is deliberately vague, since it codifies a bit of common law that the courts have been trying desperately to balance.

A key question in “fair use” is whether the reproduction harms the original copyright owner’s right to his or her work. There’s a difference between selling my own abridged version of The Road by Cormac McCarthy versus posting excerpts and encouraging people to buy their own copy of it. One action reduces the market for the original author’s work, the other increases that market and fulfill’s copyright’s goal of “promot[ing] the useful arts and sciences.”

There’s no way that reproducing one figure from a paper in order to educate the public, report on ongoing research activities and to criticize methods could be seen as taking away from the market for the Journal of the Science of Food, any more than I’ve taken food off of AAAS staff tables by copying figures from Science for blog posts over the years. Blog posts like that educate the public and report news, and in some cases it might be impossible to accurately portray experimental results precisely without quoting one or two figures and adding substantial explanatory remarks of my own describing where the figures came from and what they mean to a lay person.

It’s one thing to complain about people copying entire movies or songs on the Internet, or people who post entire columns or articles without (much) comment. That probably does cross a line. What Shelley did does not cross that line (the fraction quoted is small relative to the original work and relative to her added content, her work is a non-profit educational venture, and does not dilute the marketplace or commercial value of the original), and it’s good that Wiley figured that out.

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