Wiley & Sons: When “fair use” equals “no use”

This is the sort of thing that really irritates me.

Shelley, over at Retrospectacle posted a rather nice analysis of a paper that appeared in the Journal of the Science of Food and Agriculture entitled Natural volatile treatments increase free-radical scavenging capacity of strawberries and blackberries. She was skeptical about news reports and press releases about the article, and did an analysis that showed that the paper did not show quite what the press was representing it as showing. In her post, she used a figure from the paper under the “fair use” doctrine to illustrate her point, and within a day received a letter from a lawyer threatening legal action if she did not immediately remove the figure. She complied, but, as Mark put it:

In a sane world, this would be a clear case of “fair use”: Shelley was not stealing or taking credit for anyone’s work. She did not reprint the article. She did not write about the work without giving credit to the original authors: she provided a full and appropriate citation of the article. All she was doing is what many bloggers do regularly: she was writing about an interesting piece of research that had been published in her area. But her article doesn’t fit the spin that the authors/publishers wanted to put on it. So they resorted to legal threats to try to shut her down.

Indeed. This was nothing more than intentional intimidation by a large, wealthy corporation against a lone blogger who’s a graduate student and thus unlikely to have the resources to fight back. Even though the letter came from the UK, and it seems unlikely to me that the company would mount a trans-Atlantic lawsuit to keep a blogger from fair use of their publication, Shelley couldn’t take that chance, and I don’t blamer her. (I also agree with Mark in that I suspect that, had Shelley’s piece fallen in line with the spin being put on the article in press releases and in the press, John Wiley & Sons probably wouldn’t have done anything.) In essence, these days copyright holders seem to think that they have an absolute right to control every word on a page and every electronic bit in a PDF file, fair use be damned.

I note that the work described in the article was funded by the USDA. I don’t know if the same law applies, but the NIH now requires any manuscript generated from NIH-funded research to be deposited in a database at http://publicaccess.nih.gov. There can be an embargo for a short period of time after the research is published, but eventually all NIH-funded research must be made freely available. Presumably any blogger (like me) could access the original manuscript and engage in fair use of parts of it for posts without even having to worry about whether a publisher will try to interpret the “fair use” doctrine to mean “no use.” I invite discussion in the comments of whether Shelley’s article did or did not represent fair use of a small portion of the article.

In the meantime, click on the link to the journal above–a lot. I’m hoping that Wiley & Sons notices that its action against one of my fellow ScienceBloggers has resulted in some negative publicity. Maybe PZ or Boing Boing will get on board. Then Wiley & Sons would really notice. While you’re at it, polite e-mails asking the publisher to justify why it thinks that Shelley’s use of the figure in her blog post did not fall under the auspices of fair use might make Wiley & Sons take notice.