PulpLit.net

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Wiley and Fair Use

My favorite website Boing Boing is reporting their outrage at Wiley getting upset at a research student posting a table and a graph (or figure) from a scholarly article on her blog.

Of course, Wiley is right. You can't take someone else's creative work (that is, a figure) and reproduce it without their permission. Wiley's whole business is built on charging for the bundle of services called publishing, which consists of selecting, producing, and disseminating information.

In something like a figure or table, where there could be significant creative content, the typical rules are that you might get away with using it in a class, but you certainly can't create more than two copies of a figure or table without permission, and posting something on the internet is certainly creating more than two copies. See this site for a good summary of the rules.

If you ask anyone who works in the print publishing industry, they know that you have to get permission from the publisher before you used previously published figures and tables from published works, which another publisher will typically grant restricted rights to as a courtesy.

Why is do you need to get permission? After all, can't one reasonably argue that a table or graph is simply data, and therefore is a fact, and cannot be copyright at all? Or that the data comes from federally funded research, and should therefore be freely available to all?

Indeed, those may be a reasonable arguments. However, those are not that actual copyright rules. I am not a lawyer, and after getting schooled on Betamax vs. Sony by a commenter recently I'm going to try not to play one on TV.

But having worked as an Editorial Assistant and having had to clear every figure and graph before licensing or publishing a work, I do know what the rules are regarding publishing figures and graphs, and I can say with certainty that reproducing one from an academic journal without permission on a website is NOT fair use. Maybe one can argue convincingly that it should be, but it is not currently fair use. Putting something up on a website is not that same as using it within a classroom; it is in effect publishing it, and that is very different than including it in a print paper sent to a teacher, or making copies of an article in a source-pack for a class.

Finally, if Cory Doctorow does think that "[r]eproducing part of a figure in a critical, scholarly essay is so obviously fair use that it hardly bears discussion. Wiley's lawyers know this. You and I know it too," I think that he is mistaken. Wiley's lawyers do not know this; in fact, they likely strenuously disagree with this point if you ask them. This is not a case where a corporation is making a disingenuous argument merely to try to make a dollar: instead, I believe this is a genuine disagreement between Mr. Doctorow and publishers within the academic community.

What he considers so obvious that is does not bear discussion is something which the vast majority of publishers disagree with, so perhaps it is worth discussing a little.