April 30, 2007
Adventures in Fair-Use Doctrine
Fair-use doctrine, as codified in U.S. law, allows people to reproduce portions of copyrighted works "for purposes such as criticism, comment, news reporting, teaching, scholarship, or research." That seems straightforward enough. But there's a spanner in the works, as Shelley Batts can attest: Copyright holders can't seem to agree on just which uses are fair.
Last week Ms. Batts, a graduate student in neuroscience at the University of Michigan at Ann Arbor, wrote a harmless-looking blog post about a study published in the Journal of the Science of Food and Agriculture. The study examined the effects of alcohol on the antioxidant properties of some fruit. She summarized its findings and reproduced a chart and a graph from the journal.
Shortly thereafter, the Society of Chemical Industry, which publishes the journal, threatened a lawsuit and demanded that Ms. Batts remove the charts. She took down the offending material and redid both charts on her own: "Apparently," she wrote, "that's 100% legal and OK."
But the incident drew the attention of other bloggers in the scientific community, most of whom argued that the society had misconstrued fair-use doctrine and was acting hypocritically. After all, the company did put out a news release highlighting the results of the study.
The society has now invited Ms. Batts to reinstate the charts, and blamed the threat of litigation on a "misunderstanding." Accordingly, some of the furor over the fiasco has died down. But the incident is likely to prompt scholars to consider, once more, the often bizarre ways in which fair-use doctrine is enforced. If it's acceptable for Ms. Batts to recreate charts and then post them, is there any reason that she shouldn't be allowed to copy those charts straight from the article in which they appear? --Brock Read
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Considering all of the real problems in the world, we in academia look ridiculous when we beat up on graduate students for what are obviously entirely innocent acts.
— Dan Apr 30, 05:23 PM #
Ideas are best tested in the crucible of dissemination and review. No review can ocurr without re-publication in some form. Let’s get on with the debate about ideas and not dollars.
— Carroll May 1, 07:40 AM #
A second thought: Perhaps if Academics insisted that the Journals only have non-exclusive right to publish instead of ownership of the article, this kind on nonsense would cease.
— Carroll May 1, 07:56 AM #
You ask “...is there any reason that she shouldn’t be allowed to copy those charts…” Yes, for the same reason that she shouldn’t photocopy Shakespeare for a blog (a nauseating non-word that I hate to use). The act of re-creating is an admittedly minimal effort, but at least it’s her work being presented, not an electronic regurgitation of someone else’s.
— Bill May 1, 08:06 AM #
What if this same chart had been inserted into a paper, thesis or dissertation she had written? Would the Society of Chemical Industry have threatened a lawsuit then? I am SO glad we have plenty of lawyers in this country!
— Jeff May 1, 08:36 AM #
Bill, read the blog post in question. She wasn’t regurgitating someone else’s work. She was criticizing the news coverage around the article. To do so, she showed why the data in the paper did not support the hype that was being spread by the popsci media.
— RPM May 1, 08:54 AM #
I could use some advice on a related topic: I want to use images from the internet in an academic manuscript. Is this fair use?
— Midwest Prof May 1, 09:22 AM #
I have been following this story since the beginning. I want to know who in academia respondent #1 is mentioning. I saw only a few reactions that suggested that her use was not fair use, many fewer were from academics, most of which were people like Bill. Bill (O’Reilly??), your comment represents the best of low-brow punditry — critique without knowing what is going on, her work was a critique of the paper, and in the best tradition of academia of building on the work of others without which we could not proceed. Finally, using images on the internet may or may not be fair use, the bad thing about fair use is that the only way to be sure is through litigation. That said, many things are fair use, but many media outlets take the view that there is no use that is fair use and threaten all use with litigation. If your use is complimentary to the creator (this assumes that the user on the web is the creator) then you can always ask for permission, if is is not, it might be criticism which might make it fair use. If it is commercial use, the ice is thinner for fair use exceptions. If you are not sure, you should speak with the person who deals with copyright on your campus.
— Alan May 1, 09:50 AM #
Alan, I mean, for instance, the Society of Chemical Industry, who sued the woman.
— Dan May 1, 10:39 AM #
“a nauseating non-word that I hate to use”
Bill are you serious? Blog clearly IS a word. Should we never make up new words to describe new things? Or should we always be stuck with ‘correct’ English and ignore any sort of evolution it undergoes as being incorrect?
Also photocopying doesn’t make any sense in the context. Why would someone photocopy Shakespeare to put on a blog?
— Steve May 1, 10:59 AM #
Shakespeare’s works may be photocopied, scanned, sung, performed, posted on the Internet or blogged upon without fear since his works are in the public domain. They are no longer covered by copyright protection and thus fair use does not need to apply.
— Kathryn May 1, 11:08 AM #
I meant to say “threatened to sue.”
— Dan May 1, 11:49 AM #
In answer to #7, Midwest Prof’s, question, the fact that images come from the internet isn’t really relevant. The same copyright laws apply to digital versions of information as to paper. The internet availability of works alone doesn’t make them Fair Use.
As to your intended use in a manuscript, that’s what might govern. Let’s remember that Fair Use isn’t a right; it’s a defense against a claim of infringement. So, unlike the lead paragraph in this article. it isn’t to the copyright holders to determine what Fair Use is or isn’t; it’s the user who gets to decide whether their use will hold up in a court as a defense.
You can find more information on that subject from Stanford University’s site at http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html.
Hope that helps.
— Rob May 2, 08:19 AM #