Because Osler’s Web is protected by copyright, under the 1976 Copyright Act. (That law is the only law that governs copyright in the United States.)
Copyright does not protect facts. But copyright does protect the selection, coordination and arrangement of facts.
Osler’s Web does contain a factual history of the development and discovery of CFS. But Osler’s Web is not just a compilation of facts. In writing Osler’s Web, Johnson created a narrative out of a myriad of disparate, seemingly unrelated facts that spanned decades, facts that she had obtained from many different sources.
That narrative was not inevitable. Johnson made hundreds, if not thousands, of analytical and editorial decisions that determined its final form. To start with, she devised a plan for connecting the dots among all those separate pieces of information. Among other things, she also decided which facts to include, how to organize the facts into episodes and chapters, which cases to describe first, whom to mention by name, whom to interview, and what to quote from each interview.
The fact that Osler’s Web is the only history of the CFS epidemic does not change the fact that the particular way in which Osler’s Web tells that story – the selection, coordination and arrangement of the facts -- expresses Johnson’s individual professional analytical and literary choices.
Fair use is a doctrine that is articulated in Section 107 of the 1976 Copyright Act.
Fair use is a defense to copyright infringement. It excuses, under certain circumstances, copying that otherwise would constitute copyright infringement. If that defense fails, you are liable for copyright infringement.
The Copyright Act requires a court considering a fair use defense will look at four factors: (i) the nature and purpose of the use, (ii) the nature of the copyrighted work, (iii) the amount and substantiality of the amount taken in relation to the work as a whole, and (iv) the effect of the copying on the actual or potential market for the work. The court also can look at anything else it considers relevant.
There are no bright-line tests for fair use. There is no magic number of words that you can use from a work that will automatically meet the criteria listed above.
The point is that fair use is not simply use that you think is fair. To qualify as fair use, the use has to meet these requirements.
The fair-use rules apply even to classroom copying. You can find more specific guidance in the U.S. Copyright Office's "Circular 21-Reproductions of Copyrighted Works by Educators and Librarians” (http://www.copyright.gov/circs/circ21.pdf).
Copyright in a work created after January 1, 1978 is protected for 70 years after the author’s death.
Copyright infringement is the verbatim or near-verbatim reproduction of an author’s actual creative expression — in this case, copying the actual text of Osler’s Web without permission.
Plagiarism would be the recapitulation of Johnson’s literary narrative in different words but without crediting her as the source of that narrative.
In their book Plague, Kent Heckenlively and Judy Mikovits followed the law and proper literary practice.
From pages 43 to 48 in their book, Heckenlively and Mikovitz drew their information exclusively from Osler’s Web. However, they began that section by introducing Osler’s Web in the text, not just as a citation in the endnotes, described the significance of Osler’s Web in the history of the M.E. outbreak, and cued the reader that what followed came directly from Osler’s Web by writing, “Johnson’s description of the extraordinary lengths to which Cheney and Peterson went to unravel the mysteries of the disease is worth revisiting….”
They recount each incident described in Osler’s Web with transitions such as, “As Johnson reports,” “As (X) explained to Johnson,” “During an interview with Johnson, (X) said…” and so on.
When they wished to quote directly from the book, they made clear that they were doing so, by employing the simple phrase, “From Osler’s Web:” The direct quote that followed was set off by deep indentations on the page.
Perhaps most important, Heckenlively and Mikovits sought permission from Ms. Johnson use the material in Osler’s Web in their book, and paid a licensing fee for their use of the material.
Osler’s Web itself offers an example of proper sourcing and attribution as regards Johnson’s reference to the ideas and words of authors Oliver Sacks and Berton Roueche.
Johnson acquired permission from Roueche’s estate and formally thanked the estate on the first page of Osler’s Web. She also made numerous references in her text to Roueche and his book to clarify for readers the source of the material under discussion.
In discussing the ideas and observations expressed by Oliver Sachs about brain disorders in his book The Man Who Mistook his Wife for A Hat, Johnson also clarified directly and at every point in her text the source of her inspiration for the ideas under discussion.
Johnson has never refused a request for permission to date.
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