Magazine article Information Today

Authors Are Victorious in Major Copyright Adjudication

Magazine article Information Today

Authors Are Victorious in Major Copyright Adjudication

Article excerpt

In a stunning ruling, adjudicated on September 24, the U.S. Court of Appeals for the Second Circuit has determined that publishers and database producers may not place a freelance writer's print article into an electronic database without the author's permission. This decision overturns a lower federal district court ruling (http://www.tourolaw.edu/2ndCircuit/September99/97-9181.html).

The original 1993 lawsuit was filed by six freelance writers and the National Writers Union (NWU, http://www.nwu.org) against The New York Times; Newsday; Time, Inc.; The Atlantic Monthly; Mead Data Central Corp. (the former owner of the LEXIS-NEXIS databases); and University Microfilms (now Bell & Howell Information and Learning, formerly UMI). From 1991 to 1993, the freelancers sold articles for publication in the print versions of The New York Times, Newsday, and Sports illustrated. The publishers licensed the contents of their newspapers and magazines to University Microfilms and Mead for inclusion in various electronic databases. The case was brought against the publishers in an attempt "to determine whether publishers are entitled to place the contents of their periodicals into electronic databases and onto CD-ROMs without first securing the permission of the freelance writers whose contributions are included in those periodicals."

In 1997, the judge presiding over the lower court decision (http://www.igc.org/nwu/tvt/tvtrule.htm) concluded that publishers were permitted to load their printed works on electronic databases and CD-ROMs without seeking permission from the freelancers or making additional payments to the authors. The judge's ruling was based on an interpretation of Section 201(c) in the Copy-right Act of 1976, in which she viewed electronic databases as revisions (this section of the Copyright Act allows publishers to produce revised versions of their collective works without seeking permission from individual copyright holders).

In the new court ruling, the Second Circuit unanimously decided that an electronic collective work is not the same as a printed collective work. Databases are not revised products, as electronic works are not presented in the same selection and arrangement as printed publications. Publishers must seek permission from, and compensate, freelance writers for electronic reuse of printed works.

The NWU plans to begin the damages phase of the lawsuit, and will contact publishers on behalf of NWU writers whose works have been infringed. The NWU is seeking compensation for its membership and will be negotiating future licensing rights with publishers. Jonathan Tasini, president of the NWU and one of the plaintiffs in the case, has also sent a letter to 23 presidents of publishing companies and database producers (http://www.nwu.org/tvt/9909pub.htm), encouraging them to license electronic rights through the Publication Rights Clearinghouse (PRC), a transaction-based licensing agency for freelance writers who retain their own copyrights (http://www.igc.org/nwu/prc/prchome.htm). NWU is hopeful that this model will become "the industry standard for clearing rights on full-text databases, World Wide Web sites, and other media of the future."

In addition to the PRC, freelancers are being encouraged to register their works with the Copyright Clearance Center (CCC). Kristen Giordano, associate director of CCC's Rightsholder Services, emphasized CCC's primary function as "providing protection for all rights-holders, be they authors, publishers, musicians, photographers, etc." To assist the NWU in securing royalties for its membership, the CCC has recently completed a registration campaign, educating NWU freelancers about their rights and convincing them to register their works with the CCC. Details can be found on the CCC Web site (http://www.copyright.com/Services/AuthorServices.html).

Understandably, emotions are running high on the issue of authors' rights. …

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