Ryan’s mentor Dow whitewashed after abusing copyright to combat my reporting

The academic career of the Irish microbiologist Robert Ryan is apparently over. Following an internal misconduct investigation at the University of Dundee, Ryan had to resign from his position as group leader and lost the prestigious funding from the Wellcome Trust. Prior to this, he was suspended by his employer, while the European molecular biology society EMBO terminated his participation in the EMBO Young Investigator programme. Peculiarly, there never were any press releases or official communications. The University of Dundee apparently chose instead to leak internal emails to media (for details see my reporting here and here), the most recent announcement about Ryan’s “resignation” was no exception.

Ryan’s however is not the only name crowning all those papers now under suspicion of misconduct. Another recurrent name belongs to his former mentor of many years, the leading plant pathogen researcher Maxwell Dow, from the University College Cork (UCC) in Ireland. The PubPeer evidence is quite heavy against Ryan and Dow papers, and in fact UCC once suggested to me that they would initiate an investigation. Other media never even mentioned Dow’s name. Only on my site was his most obvious responsibility for Ryan’s research discussed, nowhere else. Now Dow decided to act against this unwelcome reporting. He submitted a DMCA takedown request to my website host WordPress and LinkedIn’s Slideshare, targeting my article and my teaching presentation from a research integrity workshop in Catania, Italy. Dow’s copyright claim concerned a photograph of his together with Ryan which was made publicly available by their university in this UCC press release.  

LinkedIn promptly removed my entire Powerpoint presentation, which I now replaced with a copy where the “offending” photograph was replaced with this drawing of mine. I drew it myself, but now I am not sure of its copyright.

This is the message I received from WordPress:

“We have received a DMCA notice (https://www.eff.org/issues/bloggers/legal/liability/IP#dmca) for material published on your WordPress.com site.

Normally this would mean that we’d have to disable access to the material. However, because we believe that this instance falls under fair use protections, we will not be removing it at this time.

Section 107 of US copyright law identifies various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. You can learn more about that here:

https://en.support.wordpress.com/fair-use/
http://www.copyright.gov/title17
http://www.copyright.gov/fls/fl102.html

While we believe that your use of the material is protected (we have fought for our users in similar cases in the past – http://www.theverge.com/2015/3/9/8175491/wordpress-automattic-wins-dmca-takedown-straight-pride-uk-case ), please keep in mind that the complainant may choose to continue to pursue this matter, perhaps directly with you. If you would prefer, you are still able to delete the content from your site yourself.

The notice we received from the complainant follows. […]

— BEGIN NOTICE —
First name: Max
Last name: Dow
Company name: University College Cork
Address: Western Rd
City: Cork
State/Region/Province: Co. Cork
ZIP: n.a.
Country: Ireland (IE)
[…]

Copyright holder: University College Cork

Location of unauthorized material:
https://forbetterscience.com/2016/08/31/the-mysterious-public-career-execution-of-robert-ryan/

Location of original materials:
https://www.ucc.ie/en/about/uccnews/archive/2010pressreleases/fullstory-113134-en.html

Description of original materials:
I have contacted the above blogger to remove several images from his webpage but he has not complied.

Below is a statement from Copyright and Legal Notice on the UNiversity Website. I would be grateful if you could remove the web-page or at the very least ask the blogger to remove the images.

All material contained in this web site is protected by copyright, whether or not a copyright notice appears on the particular page where the material is displayed. Copyright materials of others may appear in the web site. No part of any material may be reproduced or transmitted in any form or by any means or stored in a computer for retrieval purposes or otherwise without written permission from ACit, HFRG, CEC, except for brief excerpts for purposes of comment, criticism or non-commercial purposes, or as otherwise may be expressly permitted in a copyright notice or statement of use that accompanies the materials.

I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.
I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
I acknowledge that a copy of this infringement notice and any correspondence related to it, including any contact information I provided above (address, telephone number, and email address), will be forwarded to the user who uploaded the content at issue.

Digital signature: Max Dow
Signed on: 2017-01-24 15:42:28

— END NOTICE —

Dow’s claim that he “contacted the above blogger to remove several images from his webpage but he has not complied” is simply not true. The only communication we ever exchanged was his one-line reply to me from August 30^th 2016 when I asked him about Ryan’s suspension and PubPeer evidence:

“Dear Leonid,

Thanks for your message. I am afraid I cannot comment on this issue at this time.

Best wishes

Max Dow”

In fact, it seems Dow had no right at all to demand a DMCA takedown here. This is how Charles Oppenheim, consultant and retired professor of Information Science at Loughborough University, explained it to me:

1. “The University of Cork’s copyright statement is inaccurate in law.  One can reproduce part, or all, of copyright material under any exception to copyright, and the list of exceptions is longer than those provided in its statement. Also, the statement is meaningless because an arbitrary statement like that cannot over-ride the law.  The statement should, in fact, simply start along the lines “Other than as permitted by law, you may not…..”.
2. You have produced the image for a non-commercial bona fide purpose (reporting current events), so the University/Dr. Dow has no grounds for complaint.
3. Incidentally, if the University owns the copyright of the photo, it should be the  one making the complaint, not one of its employees”.

So how does the University College Cork see all this? This is the reply from their press office:

“Thanks for raising this with us. My colleagues and I are looking into the matter”.

---

Update 28.03.2019.

A reader alerted me to this undated press release from UCC:

“University College Cork (UCC) has conducted a formal review under its Code of Research Conduct into a matter of potential research misconduct by UCC staff relating to misrepresentation of data in research publications. The investigation was conducted with participation by members of the academic community external to the University. The investigation arose from an allegation of research misconduct against a former researcher at UCC. The researcher was a staff member of the University of Dundee when the issues came to light.

Following a detailed review of the matter, the UCC investigation has concluded that while there were significant shortcomings in the conduct and oversight of the relevant research activity, there was no evidence on the part of current UCC personnel of wilful intent to deceive. Institutional learning in respect of the findings of the review will inform UCC’s on-going strategies in terms of staff training and ensuring best practice in the conduct of research.
 
UCC is actively engaged in the process of correction of the scientific record and communication with relevant stakeholders”

Retraction Watch database now lists 5 retractions for Robert Ryan, published between March 2017 and May 2018. But it is reassuring to know that the key author on all of these retractions, and the last author on two, Maxwell Dow, has been found merely responsible for insufficient oversight, but never of any intent. UCC apparently also sees his DMCA attack on my site as appropriate action, to defend his and UCC’s honour.

---