Magazine article Marketing

Copyright and the Court

Magazine article Marketing

Copyright and the Court

Article excerpt

A landmark U.S. case giving freelancers more control over their creations has possible Canadian implications

A legal decision that was recently handed down by the United States Supreme Court is bound to enhance the copyright rights of freelance authors and, by implication, freelance artists as a whole.

Here are the facts: Six freelance authors had contributed articles over the years to periodicals such as the New York Times and Sports Illustrated. Without the consent of the freelancers, the periodicals authorized the republication of their articles into databases such as LexisNexis.

Subscribers to those databases search for articles by author, subject, date or similar criteria. The database search engines then select articles that meet the search criteria. Each article appears as a separate, isolated story, without any visible link to the original publication. The databases do not contain the periodicals' pictures or advertisements, or the publications' formatting features, such as headline size, location of continuation pages or page placement (for example, above or below the fold for newspapers).

The freelance authors alleged that their copyrights had been infringed by the inclusion of their articles in the databases. Under copyright law in both Canada and the United States, a magazine, a newspaper or any similar periodical is known as a "collective work." In both Canada and the U.S., copyright in each separate contribution to a collective work is distinct from the copyright in the collective work as a whole and vests initially in the article's author. In the absence of a transfer of the copyright in an article published in a collective work, the periodical is presumed to have acquired only the privilege of reproducing the contribution as part of that particular collective work.

Defences to an allegation of copyright infringement differ in the United States from those available under the Canadian Copyright Act. Many of the legal arguments raised by the periodicals would not apply in Canada, and the decision of the U.S. Supreme Court in this case is therefore of limited weight in our country as a strict legal precedent. Nonetheless, the rights of Canadian freelancers in similar circumstances are of equal concern here, and the fallout from the U.S. Supreme Court's decision could well result in a new approach to the rights of freelancers in the U. …

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