Chill Out

Shelly Batts, a PhD candidate in neuroscience, was taken aback when she wrote about a science article she had read and reproduced an image from it – then got a scary take-down order. The blogosphere reacted, the publisher retracted, and things have calmed down. The fair use issue is not resolved (the publisher said they would grant permission, not that it was okay to post an image to a blog without their permission) but at least Batts won’t be sued.

The storm that erupted is interesting, though. When a science publisher acts like the RIAA, people get angry. A lot of people. They argue the publisher is stifling criticism of ideas, and that this is one more reason to support open access. That last bit is a bit tricky: open access doesn’t mean no copyright, so the same laws apply. I guess the argument is that, without the financial incentive to protect your exclusivity, nobody would sic their lawyers on other people for reproducing the information.

But one thing is clear. Chilling effects are harder to pull off when people share information and generate some heat.

About Barbara Fister

I'm an academic librarian at Gustavus Adolphus College in St. Peter, Minnesota. Like all librarians at our small, liberal arts institution I am involved in reference, collection development, and shared management of the library. My area of specialization is instruction, with research interests also in media literacy, popular literacy, publishing, and assessment.

5 thoughts on “Chill Out

  1. “open access doesn’t mean no copyright, so the same laws apply. I guess the argument is that, without the financial incentive to protect your exclusivity, nobody would sic their lawyers on other people for reproducing the information”.

    Copyright does still apply under open access, but open access means much more than just where the money comes from. Under the Creative Commons license used by both BioMed Central and PLoS, anyone is free to reproduce an article or figures from it without further permission, under the condition that the original source is acknowledged.

    The summary of the license is that anyone is free:
    * to copy, distribute, and display the work;
    * to make derivative works;
    * to make commercial use of the work;

    Under the following conditions: Attribution
    * the original author must be given credit;
    * for any reuse or distribution, it must be made clear to others what the license terms of this work are;
    * any of these conditions can be waived if the authors gives permission.
    http://www.biomedcentral.com/info/about/license

  2. Barbara – Cory Doctorow claims that Batts’ use of the charts was obvious fair use. Do you agree? As I look at the four tests for fair use I can see that this is a very minimal portion of the original being used and that it certainly wouldn’t take away from the market the publisher has for the original work (if anything it promotes the journal). But it could be difficult to claim there is an educational function here – although “personal use” is also a possibility under “purpose and character of the use”. In Batts’ favor is that the work is factual in nature rather than creative. As I review the four tests it seems there is a good case for fair use, but it still seems that when you use an image found in a copyrighted work its fair to ask permission (even as a courtesy) from the original source. I suppose this is where creative commons licensing can be helpful by making it more clear what you can and cannot do with someone else’s content.

  3. Thanks, Matt. I think CC does a good job of letting the copyright holder specify exactly what is allowed. You can choose your own, too – I think the more OA journals do this, the better. It’s less clear in the case of traditional publishers retaining copyright but granting the author the right to post a draft with attribution – but it’s not always clear what happens if that draft is reused.

    Steven – I think it’s fair use, but I also know a scientist who had to pay a publisher to reuse a graphic he created when he needed it for another publication. I don’t know if images have been treated differently than text (the “I am not a lawyer” disclaimer comes in here), but in the case of science articles that seems nonsense to me. Unlike an artwork, it’s not something that stands on its own, it’s generally part of the text, just as the “results’ section is.

    If we decide that fair use doesn’t apply on the Web just because it’s a technology that isn’t limited to education, we’re really limiting the possibilities for scholarly communication.

    This seems to be a case where a publisher’s rule was wrongly applied, the publisher was called on it in a highly public way, and the publisher said “oops – please stop harassing us” – but framed it in terms of granting fairly wide permission, not conceding it’s fair use. This is how science and other forms of knowledge will be discussed from now on. Get used to it – or get used to being irrelevant.

  4. Images are treated differently, and that’s part of the problem. The publishers generally want to treat images as separate from the text, so that when you are using the image you are using the “whole work”=not fair use. You can also see this when articles are reproduced online without the images, or with placeholders for the images. I had a great example in chemistry, but I can’t find the reference right now–a publisher refused permission to post a chart of subscription income (I think) in the online edition of the article. However, most users of the articles would consider the graphics to be part of the article, in which case the fair use argument may come into play.

    But, of course, “I am not a lawyer”.

  5. StevenB wrote “it still seems that when you use an image found in a copyrighted work its fair to ask permission (even as a courtesy) from the original source.”

    I think we need to stay focused on what is “required” since what is “fair” (use that is) means the opposite – not needing to ask permission.

    Asking when one doesn’t need to potentially contributes to the erosion of what is considered fair use. Recently I’ve seen publishing contracts that require anything more than five or so words in a quotation to have permission.

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