INVOKING THE wit and wisdom of Samuel Johnson, who said, "No man but a blockhead ever wrote, except for money", American freelance writers will have their day before the Supreme Court tomorrow to argue the case for the digital rights to their work.
The case, Tasini vs The New York Times, has been working its way through the justice system for the past seven years, and produced a series of contradictory decisions. At heart are issues similar to those now threatening to shut down Hollywood this summer, and the recording industry's battle with Napster - ie, the ownership of copyright in the digital age.
Freelancers, represented by the National Writers Union, contend that publishers are illegally making their work available via electronic archives without reimbursement. They argue that their work has been unfairly appropriated and sold in a legally dubious bazaar without their consent.
"The issue we're facing is the same issue that the actors and screenwriters are facing," says Jonathan Tasini, head of the Writers Union. "We're all saying that we deserve a fair share of the revenue that these big media companies are making in the digital age. You want to use my work? You have to pay." The solution, writers say, lies in a rights clearing-house similar to that which pays songwriters each time their composition is played.
A consortium of powerful publishers, including The New York Times, Time Inc, The Washington Post, Dow Jones, Hearst and the database Lexis-Nexis, argues that the writers were paid for their work and the stories in the archives do not amount to a resale, only a revision of the original. If the court rules in favour of the writers, they warn, then they will have no choice but to delete anything that could provoke new lawsuits.
"If they win, everyone will lose," says Bruce P Keller, a lawyer for the publishers. "The publishers will lose because they stand the risk of possible copyright liability judgments. The public will lose because the historical record will be incomplete, and the freelancers will lose because their articles will no longer be included in electronic archives."
The case, which dates back to 1993, rests on the interpretation of US copyright law that gives publishers who buy freelance work "only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series". …