My Trusty GavelHow do you blog without getting sued? It seems like a very simple question. I know lots of science bloggers, and as far as I know none of them have been sued for blog-related material. And yet, the fear of legal action is a very real one for many science bloggers, myself included.

For most bloggers, there seem to be two areas where we are both fearful of breaking the law, and incredibly ignorant about what is/is not illegal. These areas are copyright and libel. Adrian Ebsary first brought up this issue in a comment on our ideas and suggestions page, and he has helped me to come up with a list of interview questions on both of these important topics. Today we will look at copyright, with interviews from John Wilbanks and Michael Geist.

As VP for Science, John Wilbanks runs the Science project at Creative Commons. He started and ran Incellico, an early-2000s biotech semantic database company. He has also been a semantic web fellow at the World Wide Web Consortium, a member of the project on mathematics and computation at MIT’s Computer Science & Artificial Intelligence Laboratory, a manager at the Berkman Center for Internet & Society at Harvard, and a legislative aide in the US House of Representatives.

Michael Geist is the Canada Research Chair in Internet and E-Commerce Law at the University of Ottawa. He performed his Bachelor of Laws (LL.B.) degree at Osgoode Hall Law School in Toronto, Master of Laws (LL.M.) degrees from Cambridge University in the UK and Columbia Law School in New York, and a Doctorate in Law (J.S.D.) from Columbia Law School.

Before the interview, just one more thing to get out of the way - a brief disclaimer from John Wilbanks:

“First, I need to state that Creative Commons is not a law firm, that I am not a lawyer, and this is not legal advice. Please make sure that this is the first thing posted out of this interview and retained on all copies of this interview“

As always, people are more than welcome to share the content in this blog post as they please. But if you choose to do so, please ensure that the above disclaimer is included (for the record, Adrian and I aren’t lawyers either). I should also point out that Michael and John answered these questions separately, via email, which is why their answers sometimes overlap (they weren’t simply ignoring each others’ response).

Now the interview!

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SoB: In general, what line in the sand distinguishes far use from copyright infringement? In other words, when discussing someone else’s work (journal article, blog post, photo, etc) what is allowed and what is not?

MG: Simply discussing work is fine. Copyright protects expression, not the ideas themselves.

 

SoB: What is permissible when discussing a paper that uses a Creative Commons license (e.g. PLoS Medicine), and how does this differ from discussing of a paper with a more traditional copyright (e.g. the New England Journal of Medicine)?

JW: It’s important to realize that the CC license has to do with copying and distributing a creative work, not talking about the creative work! Thus, there is no difference in discussing a PLoS article from a NEJM article. The ideas in each article themselves are not copyrightable, only the way the ideas are expressed through the grace and flow of the styling and writing, and so forth. This is known as the idea-expression dichotomy (http://en.wikipedia.org/wiki/Idea-expression_divide) and is essential to understanding the role that CC licenses play. But we can all talk about ideas.

Fair use is an exception and limitation to copyright in the United States. It can be relied on by anyone for certain uses of a copyrighted work, whether or not the work is licensed under a CC license. There is no bright line about what is fair use or not, however, and whether it applies depends on the particulars of the situation.

Now, when discussing a paper, it is plausible that one might want to quote passages from the paper or display a table. These are uses that one might believe to be fair use (and I certainly believe so) but it’s definitely the case that some traditional publishers (who don’t use CC licenses) have brought copyright claims against bloggers and writers who have made such quotes and displays (my favorite such ludicrous story is that of Shelly Batts, see http://scienceblogs.com/retrospectacle/2007/04/when_fair_use_isnt_fair_1.php). The benefit to CC licenses, however, is that even if fair use doesn’t apply, a publisher that uses CC licenses would see this kind of quoting and displaying, generally, as a Good Thing, as evidence of increased impact (PLoS actively tracks its articles in the news!). To repurpose a famous quote from software, quoting and display is a feature of online open access, not a bug.

 

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