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About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

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May 1, 2007

Fair Use and Scientific Illustration

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Posted by Alan Wexelblat

Readers may remember that I've pointed at PLoS, the Public Library of Science, from time to time in this blog. In an earlier life I was a scientist and a researcher, and I strongly believe that science works best when its results are freely available for wide public dissemination, use, and scrutiny. Apparently the noted science publisher John Wiley & Sons does not share this sentiment; they'd rather lock up the science and have people pay high prices to look at it -- have you seen journal subscription fees these days? Dear gods.

In this specific case, JW&S are asserting copyright in a table and graphs, not even a whole publication. This raises some questions about what constitutes fair use in scientific publication.

As reported by Dave Munger in Cognitive Daily, JW&S sent a cease-and-desist letter to a blogger compiling information about antioxidants in fruits. She had used one table and one figure, then removed them in response to the letter. They're back now in part because the blogsphere objected, but all JW&S did was grant specific permission, not admit that the category of figures is fair-use-able.

Munger delves into the issue, and comes up with the classic "it depends"; don't all questions about copyright and fair use end that way? There really don't seem to be any good guidelines on whether a figure from a journal article is a copyrightable entity in its own right (as a photograph would be) or whether it's more like an excerpt, for which there are well-known fair-use rules.

Unfortunately, his proposed solution - recreate the figure from scratch - doesn't really avoid the problem he thinks it does. A figure created in this way is pretty clearly a derivative work, since it's derived from the data and figure in the original published article. As a derivative work it's still subject to the restrictions of copyrights and the questions of fair-use exemptions still apply.

EDIT: The blogger in question, Shelley Batts, added "See the current story in The Scientist for more info on the case. http://www.the-scientist.com/news/home/53177/)

Comments (4) + TrackBacks (0) | Category: IP Use


COMMENTS

1. Siva on May 1, 2007 11:59 AM writes...

Alex,

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.

Siva

Permalink to Comment

2. Joe Clark on May 1, 2007 2:36 PM writes...

I don’t see how anything would change if the technical illustration were equivalent to a photograph, since you may nonetheless reproduce a photograph under U.S. fair use.

Permalink to Comment

3. Shelley Batts on May 2, 2007 6:36 PM writes...

A few comments: the name of the blog in question is Retrospectacle, which is also at Scienceblogs (hosted by SEED--not 'SEEN').

www.scienceblogs.com/retrospectacle

I'm the author, and I suppose calling me a 'blogger' is a bit more accurate than a 'reporter.'

See the current story in The Scientist for more info on the case. http://www.the-scientist.com/news/home/53177/

Permalink to Comment

4. drwex on May 3, 2007 10:31 AM writes...

Siva: copyright and fair use are inextricably linked. Copyrights give the copyright holder the right to restrict certain activities; fair use permits some activities regardless of permission.

Joe: I'm not certain of the reproducability of photographs. I believe that as copyright works they are NOT reproduceable. See the discussion a few weeks back in this blog around the "Sandinista Man" photograph.

Shelley: sorry "SEEN" was my emphasis at journal prices. I'll edit that. I'll also update the entry to reflect your other comments - thanks!

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