Retrospective Publishing Contracts: Publishers and Authors Should Work Together to Comply with Tasini. (Legal Issues)
Ardito, Stephanie C., Bjorner, Susanne, Information Today
The letter should not have come as a surprise. After all, the Supreme Court decision last June in favor of freelance writers (New York Times Co., Inc., et al. v. Tasini, et al.) sent shock waves through publishers. They suddenly understood that they were legally liable for licensing articles for which they did not own the rights to third-party publishers and aggregators.
In writing the majority opinion, Justice Ruth Bader Ginsburg summarized the adjudication: "Because the databases reproduce and distribute articles standing alone and not in context ... [b]oth the print publishers and the electronic publishers, we rule, have infringed the copyrights of the freelance authors." (1)
Since the Supreme Court did not offer a remedy or guidelines for dealing with the past practice--which was widespread among publishers--and since Jonathan Tasini, president of the National Writers Union (NWU) and the named litigant in the case, showed no signs of mollification, the door was wide open for print and electronic publishers to fear the worst.
Within 9 days of the verdict, The New York Times pulled older book reviews from its Web site, admitting that for a period, "The Times typically did not have written agreements with freelance book reviewers to permit publishing reviews in electronic form." (2) The newspaper's publisher formally announced that "it would delete 115,000 freelance works, dated from 1980--95, from its own and other databases." (3)
It was only a matter of time before other publishers who also did not have signed contracts that authorized electronic distribution--either by themselves or by aggregators with whom they had deals--would also take action. But what action?
Last fall's library and information conferences all provided forums for mulling over the decision and its implications. In many cases, notably the Charleston Conference and Internet Librarian, the simultaneous presence of authors, publishers, aggregators, and librarians produced lively and informative discussions. The biggest fear, as SCOUG (Southern California Online Users Group) tided its session at the Internet Librarian conference, is whether the Tasini decision marks "The End of Full Text as We Know It." Would freelance-written, unauthorized articles be removed from full-text databases, leaving a Swiss-cheese archive with holes in the historical record? By November, Rick Anderson wrote in a review article that there were "scattered reports of content suddenly disappearing from online products, but nothing like the catastrophic outbreak of database leprosy that was predicted in some quarters." (4)
For authors, is risking the deletion of your works from the online record worth the possibility of back payments? We can't help but speculate whether civil actions filed against publishers for damages would provide significant revenues, to freelancers. We also wonder how freelance incomes are faring post-Tasini. We would like to see an updated version of the 1995 National Writers Union/Wellesley College "American Writers Survey" (http://members.aol.com/nancyds/wlot1.html), since, for example, the NWU last fall accused The New York Times of "blacklisting" some freelance writers. (5)
Publishers--faulted in the decision for selling individual works to aggregators without authors' permissions and who may have unwittingly told aggregators that they possessed the rights to everything that was delivered--got very busy trying to secure those rights retrospectively. Authors are now receiving letters that essentially request permission to do what has already been done with their past work. One of those letters was the inspiration for this column--it came from Information Today, Inc. (ITI), Information Today's publisher.
The letter spoke thoughtfully to authors as colleagues and tried to explain how the practice started in the early days, when microfilming was the most prevalent form of preserving and archiving newspapers, magazines, and journals. …