Update: The awesome power of the blogosphere has got Shelley an apology (see also this comment for some welcome clarification on her usage rights). Whilst this is great news, I think that the murky issues of where blogs stand with respect to copyright law remain; we’re going to have to remain vigilant on this one.
A couple of days ago, Shelley over at Retrospectacle wrote a post examining this paper from the Journal of the Science of Food and Agriculture published by John Wiley and Sons, and explained that contrary to what many media outlets were proclaiming, it did not provide evidence that your daily fruit ration was best ingested in alcoholic form. The next day
she received a letter from the journal editors, claiming that she had breached copyright by including a table and graph from the paper in her post, and threatening to unleash the Wiley lawyers on her.
It goes without saying that this smacks more than a little of bullying (why contact Shelley and not the Seed Overlords?), but it’s also a matter of some concern for all science bloggers (senso lato), because a large part of what most of us do is write about recently published research, and sometimes the only way to really describe the results is to use figures and tables from the papers in question. When I do this, I always make sure that I link to the paper in question (I normally try to find a web page for the authors, too), and I clearly state which figure I’m using; and like many people, I was under the impression that this was acceptable under ‘Fair Use’ guidelines. It seems that some people beg to differ, and if they’re right then practically all of us could be in the legal firing line.
So did Shelley breach fair use? I can’t claim to much detailed knowledge in this area, and most people seem to think not (see the link round up by the usual suspect); I will, however, point out that this journal is published from the UK, and UK copyright law is possibly a bit different from US copyright law (and sadly, where it does differ, it generally errs on the side of protecting vested interests). Here’s what Wikipedia has to say on ‘fair dealing’:
s29.–(1) Fair dealing with a literary, dramatic, musical … for the purposes of research for a non-commercial purpose does not infringe any copyright in the work provided it is accompanied by a sufficient acknowledgement …
s30.–(1) Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement and provided that the work has been made available to the public.
Either of the statements I’ve bolded could be problematic; the first because the Seed Overlords run ads on this site (not that even PZ could live off the income which makes its way to your humble bloggers), and the second because the article in question is behind the inevitable paywall. So, legally, Wiley might have a bit of leverage. But if you actually look at what they themselves say about using excerpts of published material you find this (again, my emphasis):
Users at institutions which have subscribed to Electronic Product and users who have access under a Society or Personal License will have access to the full text of such Electronic Product (“Authorized Users”). Authorized Users may download, view, copy and save to hard disk or diskette and store or print out single copies of individual articles or items for your own personal use, scholarly, educational or scientific research or internal business use. Authorized Users may transmit to a third-party colleague in hard copy or electronically, a single article or item from Wiley InterScience for personal use or scholarly, educational, or scientific research or professional use but not for re-sale. In addition, Authorized Users have the right to use, with appropriate credit, figures, tables and brief excerpts from individual articles in the Electronic Product(s) in your own scientific, scholarly and educational works.
You’d have to be taking a fairly harsh line to say that a blog post using one part of a figure is going against this; and it highlights the fact that the threatening e-mail came from the editorial department of one journal, rather than the headquarters of the entire publishing enterprise. This leads the cynical amongst us to suggest that this is more to do with the fact that Shelley was briefing against the press releases (some of which the journal is likely to have been responsible for) than her use of a subfigure – I mean, how often does the Journal of the Science of Food and Agriculture get mentioned on the BBC?
Still, the fact remains that there does seem to be some uncertainty in the current guidelines over where science blogging – a variable admixture of hobby, journalism, research and promotion – actually sits, which sadly seems to allow people to start throwing legal hissy fits on a whim. The good news is that, as far as I know, this sort of action by STM publishers is quite rare: it’s not like we smuggle the whole paper through the subscription wall, so hopefully they take the view that all publicity is good publicity. As Janet argues, it would be rather foolish not to.
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