Fair use? If it benefits the progress of science or the dissemination of scientific knowledge, it really ought to be fair use, no matter what. But when it's cropping out a piece of a figure for an illustration in an article about a scientific result, with that result fully cited, it fully is fair use, even under the shrinking domain that remains within USA copyright law. Alas, when you are an individual graduate student, and the entity asserting that you're violating their copyright, knowledge that you are well within fair use is little comfort when you're faced the travesty that is our civil justice system and the publishing company's phalanx of lawyers.
Perhaps it is of some help if you have the entire blogosphere on your side, ridiculing the publishing company for their stupid assertion and generally heaping scorn on this company for their awful and borderline unethical behavior.
The situation is doubtless one you're already well aware of as a scienceblogs reader. Science blogger Shelly Batts wrote a piece about a scientific paper that has been presented in the media as "alcohol is good for you.". Shelly went and looked at the actual paper, looked at the results, and posted her own analysis. Unsurprisingly, things weren't quite as clear cut as the media hype. Shelly's take on it did not quite have the spin of the press releases put out by the publishers of the article. In her article, she used one panel of one figure from the paper.
The result? Shelly gets a lawyergram from Wiley insisting that she's violated their copyright by reproducing their figure, and that she had better take down her post or face legal action.
Classic schoolyard bully behavior. What are you going to do? If you're smart, you take it down quickly and avoid facing the legal wrath of a big company whose resources arefar beyond your own. Never mind that this amount of use was for Shelly's own commentary and was well within the bounds of traditional copyright fair use. When you're faced with a civil suit, it costs to defend yourself. Even if you're in the right, you can be stuck when somebody with bigger lawyers comes threatening. This is part of the hidden danger of our current climate of intellectual property contro.l
The simple fact is that this is taxpayer funded research,and should be available for all to use. There shouldn't even be the possibility of a commercial entity raising the specter of some intellectual property claim in order to squelch an article that is critical of the spin they've put on a scientific result. If this sort of thing happens, it can destroy science. Science depends on its results being distributed widely. It's bad enough that taxpayer funded research is becoming the exclusive property of a censoring private commercial interest, but science simply does not work if people aren't free to offer criticism of the work of other scientists.
Copyright maximalism in the USA is completely out of control at the moment. Too many people have this idea that copyright is a fundamental right on par with the right of free speech. Too many people are just accepting the claims of the music, movie, and publishing industries that copyright violation is a problem that needs to be dealt with harshly, and that requires stronger laws and protections. Too many people are likely to think that there is anything legitimate at all in Wiley sending out threatening letters like this. This behavior should be considered to be on par with any other corporate misdeed you read about in the newspapers.
Shame on you, Wiley. Shame on you, Journal of the Science of Food and Agriculture. Shame on you both for allowing this sort of thing to happen while you claim to be representing the interests of a field of science.
And shame on all of the scientific establishment for allowing ourselves to become so dependent upon and beholden to commercial publishers. Their interests are not the interests of science. We've allowed them to have too much control over the dissemination of scientific results. I doubt Shelly's experience is unique. This kind of crap is exactly the sort of thing you can expect from a commercial publisher which is hyper about intellectual property, and is exactly the sort of thing that represents a threat to the progress of science.
You go, Shelly. Stand up to the bastards.