RightsLink: my distressing travails with Fair Use


Or, what one gets for trying to be good and law-abiding.

Navigating the labyrinthine maze known as the Copyright Law is never an easy task, either for the prospective blogger/author, or for the organization that would host/publish the work of such a blogger/author. This problem is particularly acute for academic or personal bloggers, who are attached - rather loosely - to free platforms (such as Google Blogger or WordPress), or to platforms hosted by non-profit concerns (such as this one, Scilogs.com). I, as an academic/personal blogger, am not paid by Scilogs or anyone else for my blogging endeavors; I like writing, I like explaining how things work, and I am passionate about science, science communication and science education. I do this by carefully juggling my time in between my work as a bioscience researcher.

In short, nothing out of the ordinary for an academic researcher/blogger - whose only motivation for blogging is dissemination of scientifically accurate information, facts and features of science. There are many like me.

It is not difficult to imagine that in order to disseminate information, explain, teach and instruct, I would sometimes need to use material that is copyrighted to others, just as others would use material copyrighted to me. This, to me, represents a major aspect of academic freedoms, namely academic exchange, or free flow of educational information - something in which I firmly believe, and I believe that it enriches all concerned.

And I also believe that this is the spirit with which the Doctrine of Fair Use was inculcated. Let me quote the US Copyright Office on this.

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of "fair use" (emphasis mine). The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

Does the doctrine of Fair Use offer some succor to people in my situation? I believe so. According to the US Copyright Office:

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research (again, emphasis mine). Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.

  1. The purpose and character of the use, including whether such use is of 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
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

Glory be! So it does appear that my use of, say, a part of a figure from a published academic paper - with proper attribution to the author and/or copyright holder, of course - for the purpose of commenting or educational instruction is indeed covered under Fair Use.

What's that you say? "Not so fast, buster!"? The next few lines from the explanatory Copyright Office document are rather ominous.

The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

Say, what? Did the folks who wrote this law not realize that leaving such grey areas is the surest way that predatory copyright holders (mostly, publishers - not the authors of the original work) can continue to hassle people who would want to legitimately re-use material, for - y'know - that thing called academic exchange? Perhaps the answer to that question is both 'yea' and 'nay'.

According to the US Copyright Office document I am citing, a "1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use":

  1. Quotation of excerpts in a review or criticism for purposes of illustration or comment;
  2. Quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations;
  3. Use in a parody of some of the content of the work parodied;
  4. Summary of an address or article, with brief quotations, in a news report;
  5. Reproduction by a library of a portion of a work to replace part of a damaged copy;
  6. Reproduction by a teacher or student of a small part of a work to illustrate a lesson;
  7. Reproduction of a work in legislative or judicial proceedings or reports;
  8. Incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.

I feel certain that were I to use a part of an published imaged from a scientific paper with attribution, that use would be adequately covered by point 6, perhaps also 1 and 2. However, having established all that, the document also advises:

The safest course is to get permission from the copyright owner before using copyrighted material... When it is impracticable to obtain permission, you should consider avoiding the use of copyrighted material unless you are confident that the doctrine of fair use would apply to the situation.

And you know something? I really wanted to be good and follow the letter of the law, and therefore, I asked for permission to use published figures from respective publishers. I have earlier written in this blog about my extremely poor and unsatisfactory experience with Thomson Reuters. With an academic publisher, I thought, things would be different, that such a publisher would readily understand the kind of use I have in mind, and the need for a timely resolution of my request.

Boy, was I naïve! Many publishers (including the major ones, Nature Publishing, Cell Press, Elsevier, et al.) use a kind of copyright clearinghouse called RightsLink, a service of Copyright Clearance Center, who style themselves as "rights licensing experts" and a "global rights broker". Get this, then:

  • For a permission request made in September 2012, today April 5, I received an invoice for USD 59.80 - to be able to use a part of two figures from the March 2012 issue of an Elsevier Journal Trends in Biochemical Sciences; this was to go in my post on inflammatory processes in diabetes.
  • A request that I made on January 30 this year, for using a part of a figure from Cell still has no resolution.
  • Two requests that I made a few days ago while writing my series on Cryptococcal disease gave me an instant price: close to 60 dollars, for a part of a figure published in an Elsevier journal, Advances in Applied Microbiology, and 10 dollars, for a part of a figure from my own paper in the ASM Press journal, Infection and Immunity.

If every academic blogger has to pay for every image that they want to use for the purpose of instruction or education, it would be a great source of revenue for the publisher - yes - but does that at all serve the cause of academic exchange? Doesn't this effectively circumvent the entire purpose of the Fair Use doctrine, and stifle academic freedoms? The inordinate amount of time which RightsLink takes for the resolution of these permission requests, whom does that benefit - bloggers/authors, people, cause of science and education?

What would you do in this situation, readers?


2 Responses to “RightsLink: my distressing travails with Fair Use”

  1. sedeer Reply | Permalink

    I agree that the current copyright & licensing atmosphere is generally pretty stifling -- more or less the opposite of what the system is supposed to accomplish. So far, I've haven't run into this problem on my blog. I often write about open access articles, and when I don't I can usually find an appropriate CC-licensed image I can use.

    I think that I would be pretty comfortable re-using a figure from a paper that wasn't open access without requesting permission. To my mind, it falls pretty clearly within "fair use". I would prefer to make the rightsholder come and challenge my judgement than to ask permission, which feels like allowing them to decide what counts as fair use.

  2. Kausik Datta Reply | Permalink

    Thank you for your comment. The CC-licensed images are fine when I am doing general blogging. However, when I comment on academic articles, or try to explain a biological phenomenon, it sometimes does become necessary to build upon the work that others have done - including illustrating a point with a published image.

    I would consider the kind of use you mention 'Fair Use', too. However, since my blog is hosted on a platform provided by Spektrum, I have to abide by their rules, one of which is the agreement that I should not use copyrighted content for which they may be held liable. In the recent past, I have had to remove one or more images from my posts, because they caused concern about whether my usage would be covered under Fair Use.

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