An argument for open access

A minor flap has erupted regarding blogging and scientific publishing that I'd like to draw some attention to: Shelley Batts, who writes the Retrospectacle blog posted her own summary and review of a research paper published in the Journal of the Science of Food and Agriculture. In the summary, she included a figure and a table from the paper. This is the sort of thing that I do all the time -- it is impossible to comment intelligently on some research without being able to refer to graphical presentations of the results.

Then, she got a letter from the journal threatening legal action unless the copyrighted figure and table were removed. You can read the letter and some commentary at her site. She removed the figure and table, replacing them by entering the data in Excel and making equivalents -- there's no copyright on data. So that solves the problem for her, and removes the threat.

I'm linking this because, like Razib, I think it's important to shine a light on this behavior by publishers. But additionally, I think there are some issues that are not easily resolved.

Others have been arguing that the use of the figure is clearly fair use. The Electronic Frontier Foundation has a short FAQ on fair use doctrine, with links to other longer reviews. I would certainly prefer that all uses were fair use, but it is not at all obvious to me in this case.

Retrospectacle is a ScienceBlogs site, and they run advertising. In other words, somebody is taking money for running the ads. Now, whether the ScienceBlogs should be considered a part of Seed Magazine or merely a loss-leading subcompartment of the Seed Media Group, it is understandable that a scientific publisher might balk at the use of their copyrighted figures in that context without permission or royalty payments. I'm not saying that this particular case was not fair use; just that it isn't an obvious conclusion.

And what about all those blog posts on ScienceBlogs that quote copyrighted text? Maybe a figure is worth a thousand words, but two or three paragraphs of text on an ad-supported site seems pretty likely to violate fair use doctrine. I'm not trying to pick on ScienceBlogs -- I read and link many of them -- and the problem is not unique, since many Blogger, LiveJournal, and other sites are configured to use ads. But noncommercial versus commercial is one of the main criteria in fair use doctrine. Others include criticism, comment, and scholarship, which many -- though not all -- science blogs embody. So it's a good question.

Nobody's making any money on the John Hawks Anthropology Weblog. I am always very careful to choose those figures necessary to support and interpret my text, and I limit direct text quotes to abstracts and those parts of a paper that are necessary for my discussion. I don't think you can get any more fair use than this site. No grey area: if it's not fair use, it's not posted here.

So, you're probably thinking, "That was a nice statement for the lawyers, Dudley Do-right, but the entire web is based on quoting-and-linking." And I'm no exception. But my paranoia is ratcheted up a level above a normal level, for the basic reason that stuck-out necks attract axes.

I'm concerned about the chilling effects of copyright, because for most of the papers I review, the data aren't so easy to transcribe. Many papers don't supply their data at all. In some papers, the essential data are photographic. If the weblog is going to be a vehicle for commentary on research, it is necessary to use figures sometimes, and these figures cannot simply be replicated from data tables. It is entirely foreseeable that aggressive copyright enforcement could be used to block dissent from published results (will they let you use a published figure in a submission to another journal?).

If that's not a worry for you, then consider that a journal going after a blog for posting a figure is uncomfortably close to a journal going after an author for posting a PDF. After all, that's not distribution of a single figure (which might drive some people to buy the whole thing), but distribution of the entire paper -- and many, many papers are available from authors' own websites.

I hope the journals never crack down, because I depend on all those PDFs for my research. At the same time, I've never posted any of mine, because copyright agreements are very clear that posting PDF reprints is verboten.

Should you be as paranoid as me? I have to be cleaner about copyright than most authors, since it's much more likely that somebody will notice a PDF that I post here than somebody else on a random lab website. It's why I take fair use and other copyright issues so seriously.

But if you're an author of anthropology papers, you should watch out. The publisher in question is Wiley -- publisher of the American Journal of Physical Anthropology, among others. Now you may see why this is worth some attention -- if Wiley is sending its lawyers after the use of a figure on a blog, will they be coming after your PDFs next? I doubt it, but there are those copyright agreements...

I don't think there is any imminent danger, but it serves as a reminder to be vigilant. And to choose open access journals where it is practicable.