My Sci­b­ling Shel­ley has got­ten into and out of a bit of fuss while I’ve been incom­mu­ni­ca­do. She post­ed about a paper dis­cussing the role of alco­hol in pro­tect­ing antiox­i­dants in fruit. As so many of us have done, she post­ed a graph and table from the orig­i­nal paper to illus­trate her descrip­tion of the study. Wiley Inter­science com­plained, but has, thank­ful­ly, buck­led to their obvi­ous wrongness.

To me and most observers, what Shel­ley did is an obvi­ous instance of “fair use,” as described by U.S. law:

the fair use of a copy­right­ed work … for pur­pos­es such as crit­i­cism, com­ment, news report­ing, teach­ing (includ­ing mul­ti­ple copies for class­room use), schol­ar­ship, or research, is not an infringe­ment of copy­right. In deter­min­ing whether the use made of a work in any par­tic­u­lar case is a fair use the fac­tors to be con­sid­ered shall include —

(1) the pur­pose and char­ac­ter of the use, includ­ing whether such use is of a com­mer­cial nature or is for non­prof­it edu­ca­tion­al purposes;

(2) the nature of the copy­right­ed work;

(3) the amount and sub­stan­tial­i­ty of the por­tion used in rela­tion to the copy­right­ed work as a whole; and

(4) the effect of the use upon the poten­tial mar­ket for or val­ue of the copy­right­ed work.

This is delib­er­ate­ly vague, since it cod­i­fies a bit of com­mon law that the courts have been try­ing des­per­ate­ly to balance.

A key ques­tion in “fair use” is whether the repro­duc­tion harms the orig­i­nal copy­right own­er’s right to his or her work. There’s a dif­fer­ence between sell­ing my own abridged ver­sion of The Road by Cor­mac McCarthy ver­sus post­ing excerpts and encour­ag­ing peo­ple to buy their own copy of it. One action reduces the mar­ket for the orig­i­nal author’s work, the oth­er increas­es that mar­ket and ful­fil­l’s copy­right’s goal of “promot[ing] the use­ful arts and sciences.”

There’s no way that repro­duc­ing one fig­ure from a paper in order to edu­cate the pub­lic, report on ongo­ing research activ­i­ties and to crit­i­cize meth­ods could be seen as tak­ing away from the mar­ket for the Jour­nal of the Sci­ence of Food, any more than I’ve tak­en food off of AAAS staff tables by copy­ing fig­ures from Sci­ence for blog posts over the years. Blog posts like that edu­cate the pub­lic and report news, and in some cas­es it might be impos­si­ble to accu­rate­ly por­tray exper­i­men­tal results pre­cise­ly with­out quot­ing one or two fig­ures and adding sub­stan­tial explana­to­ry remarks of my own describ­ing where the fig­ures came from and what they mean to a lay person.

It’s one thing to com­plain about peo­ple copy­ing entire movies or songs on the Inter­net, or peo­ple who post entire columns or arti­cles with­out (much) com­ment. That prob­a­bly does cross a line. What Shel­ley did does not cross that line (the frac­tion quot­ed is small rel­a­tive to the orig­i­nal work and rel­a­tive to her added con­tent, her work is a non-prof­it edu­ca­tion­al ven­ture, and does not dilute the mar­ket­place or com­mer­cial val­ue of the orig­i­nal), and it’s good that Wiley fig­ured that out.