Copyright Law

February 4, 2005 8:02 PM

Copyright law: Can I reproduce a table or a series of tables or diagrams from professional journals as part of a larger educational critical analysis and distribute my new work under a Creative Commons or GPL type license? I think that as long as my use is allowed under fair use doctrine, I can release my creation under my own terms. Correct? Or are data tables and modelling diagrams beyond fair use? Does the fact that it is educational and non-profit matter?
posted by McGuillicuddy to law & government (11 answers total)

It's educational use. You should be ok.
posted by banished at 8:48 PM on February 4, 2005

As long as you cite properly, you will be fine.
posted by Quartermass at 8:53 PM on February 4, 2005

A sticky situation might arise if someone then takes your GPLed work and sells/reproduces it for a non-educational use.
posted by falconred at 9:46 PM on February 4, 2005

As long as your use is legal, you can license it under whatever terms you like.

Simple, huh? Well, unfortunately, that statement, while literally true, hides some unpleasant complexities:

First, your choice to license the work affects fair use analysis. Two of the fair use factors -- the nature of your use and the effect on the market for the original -- might be different based on your choice to license the work to others. So you need to ask whether your use still has the critical, educational aspects you mention once others are free to reuse it under the terms of the CC license you choose.

(Side note: choose a CC license, not the GPL. The GPL is a software license and not well-tailored to tables, diagrams, and other things that don't have source code. The GFDL might be appropriate, but not the GPL.)

Second, be aware that your are licensing the right to use the derivative work you've made, but not giving away any rights in the original work you're taking the tables from. Your copyright in your new work stems from your contributions to it, but you haven't gained any rights over the original.

Third, be aware that your choice to use a permissive license doesn't necessarily mean that people who copy your work or make new works off of it won't be infringing the original copyright. This could happen, say, if a large corporation takes your work and uses the tables and a tiny bit of what you added as part of a major ad campaign. The educational, critical aspects of your revision will have been stripped out, leaving something that's much less of a candidate for fair use. You can license, but you can't guarantee safety to anyone.

Fourth, if in fact your new work isn't fair use, you don't have a copyright in your additions, so as to them, your license is irrelevant.

(Finally, be warned that this isn't high-quality legal thought. I'm tired, and I haven't looked things up, and I haven't done much copyright lately, and I'm still in law school. But the above warnings are how I remember things as being.)
posted by grimmelm at 10:34 PM on February 4, 2005

The easiest way to make sure you are not violating copyright is to contact the original publisher of the source of the tables and request permission. Just a short e-mail to the publisher's permissions dept. with citation information (including the page numbers where the tables appear) and a statement of your desire to use the material for educational purposes will do the trick; academic publishers generally process these by the bucketful and respond very quickly. I've never personally seen an educational material permission refused.

The original publisher will usually ask that you include a note below the table with an acknowledgement that you've used this material. The note will consist of a complete source cite (the publisher will provide you with their preferred wording) and the phrase "adapted with permission."

Your new use then does not affect the original copyright, as grimmelm states.
posted by melissa may at 12:49 AM on February 5, 2005

I have an article in press, in which I have spent well over a thousand hours compiling the data that went into the tables - and it's not even original research; it's a review.

I can tell you that if I saw someone reproducing this table unattributed, I'd be annoyed enough to get a lawyer involved.
posted by ikkyu2 at 7:52 AM on February 5, 2005

How did I miss this one? Factual data isn't copyrightable. No matter how much time the original author spent in compiling it, there's no copyright, thanks to a 1991 Supreme Court decision (Feist v. Rural).

One possible out is if the arrangement of data into tables involved something substantially creative -- and my sense is that this is almost never the case for tables of data -- is there potentially a copyright. But obvious stuff like taking totals, arranging chronologiclaly or by size, and so on won't do.

If the diagrams involve some artistic interpretation, that might be another matter. If they're straight bar charts, on the other hand, then it's the same deal: no copyright, because they're not sufficiently "original."

Also, one other question you should be asking (although not as urgently) is whether your use of the data is "unfair competition." Unfair competition is a kind of mishmash of false advertising and trademark law: it prohibits you from tricking consumers into thinking that you're selling something that, in fact, only one of your competitors are selling.

But that depends on state law, including possibly the law of the state you're in and the law of the state the the original author is in. I don't think any states have gone that far with their unfair competition law, neither with respect to compilations of data nor with respect to educational works with substantial other new content. But hey, there are 50 of the little critters, and I've spent a grand total of two weeks in my life looking and unfair competition law. Your mileage may vary.
posted by grimmelm at 8:19 AM on February 5, 2005

A little follow-up:

ikkyu2 - Are your tables compilations and analysis of previous work? Is your review based on fair use or permission of the original author/publisher? All work is being attributed clearly, would that satisfy your personal requirement? If you saw a medical student's review recent literature that cited your article and reproduced your table of findings (on the same page), would you call it good publicity or copyright infringement?

grimmelm - Thank you. I left the licensing options vague because a set of tables may be used in a software package that could be GPL'd. I am using the CC BY-NC-SA license in this case, but wonder about using all kinds of data in table format rather than taking text quotes.

Finally, requesting permission of the publishers is an option, but this is on-going work with new material added all the time. Does anyone have experience asking for on-going permission to review a source and use selected quotes? Will the publishers balk at our distribution license (CC BY-NC-SA)? Do movie reviewers (or TV stations) have agreements with the major studios for reviewing and showing clips of movies? Or do they rely on Fair Use and the mutual benefit? Thank you all.
posted by McGuillicuddy at 8:30 AM on February 5, 2005

Any citation is good citation, McGuillicuddy :)
posted by ikkyu2 at 10:38 AM on February 5, 2005

grimmelm, I'm not an expert on these issues, but I think your statements need some nuance. If we're talking about tabular representation of facts in the public domain, then I think you are spot on. However, if we're talking about wholesale repetition of tables full of data gathered and published by private sources and protected under copyright, you are incorrect, and the material is protected.

In any event, the academic style guides I most routinely consult, AMA and APA, are very explicit about reproduction of tables or figures. I don't have manuals here to cite directly from, a quick googling shows that it's standard practice for journals to require authors to request permission to adapt tables. Now, how your Fair Use, self-publishing status affects this, I can't say. The original publisher can, though, and since you can ask the question of them with a quick e-mail, I'd say this is your best route. Like I said, educational use is widely understood to be of benefit to the publisher and original author(s), so I'd be surprised if you had any trouble getting permission.
posted by melissa may at 5:17 PM on February 5, 2005

The project I'm working on provides web-based distribution for a journal club's review and analysis of recently published literature in slide-based presentation format. Journal Clubs, like Book Clubs, have long been privately sharing their work, the new twist in this situation is the broad distribution method aimed at making the knowledge more universally available.

Melissa May's point is an interesting one and raises the question: will respected professionals agree to publish the same educational material they present privately everyday? So far some have been, but my original question came up recently and I'm seeking disinterested quasi-legal and ethical opinions. Our issue is not meeting a journal's standards, it is making the knowledge contained in journal articles available to those that can't pay $20 a month for journal access. (While respecting the property rights of corporations that are busy perpetually copyrighting and patenting everything known to man. [/sarcasm])

Melissa May, thank you for your help. Your answers give me food for thought.
posted by McGuillicuddy at 6:16 PM on February 5, 2005