What Price Copyright? New Concerns

By Poynder, Richard | Information Today, December 1999 | Go to article overview

What Price Copyright? New Concerns


Poynder, Richard, Information Today


Intellectual property--the fuel of the information industry--is in danger

In the knowledge economy, surely intellectual property gains importance and becomes the primary source of competitive advantage. Certainly for the information industry, copyright should be an essential weapon for companies as they migrate their businesses to the Web. Yet in the face of legal uncertainty, misinformation, and disinterest, there is a danger that the industry could be conspiring in the degradation, and possible extinction, of its most vital source of protection.

Trouble in the Air?

This was highlighted for me in August when, out of the blue, I received e-mail from the Dow Jones Journal Reprints department. The message referred to two hyperlinks on my Web site pointing to articles I had written for the Wall Street Journal Europe that were subsequently published on the newspaper's Web site.

Dow Jones was contacting me to demand that I pay for those links--a payment, moreover, consisting of an annual fee four times as high as I had originally earned from writing the articles! "Any republication of our material without our permission is a violation of our copyrights," explained Dow Jones.

The assumption was that in linking to the articles I was "republishing" them. And while it was eventually conceded that I should keep the links without payment, Dow Jones genuinely seemed to believe I had been infringing its copyright. A view, points out Keith Kupferschmid, intellectual property counsel at the Washington-based Software & Information Industry Association (SIIA), unlikely to be endorsed by the courts. "There has in the U.S. been case law with regard to whether linking is a copyright infringement," he said. "But I do not believe that linking in itself is copyright infringement."

However, the incident raised another question. As I had never assigned the electronic rights in the articles to the Wall Street Journal Europe, then rather than my infringing Dow Jones rights, was the company infringing mine in putting the articles online? My correspondents demurred, "Dow Jones disagrees with your suggestion that it does not have the right to electronically post these articles."

Changing Tides

Interestingly, the Second Circuit Court of Appeals in Manhattan addressed this issue a month later. Ruling on a long-standing dispute over electronic rights (Tasini v. The New York Times Co. Inc.), the court concluded that several publishers, including The New York Times and Newsweek along with their co-defendants UMI and Mead Data Central (former owners of LEXIS-NEXIS), did not have the right to put freelance journalists' articles into electronic databases without the authors' permission.

Alan Fisch, an Internet and intellectual property law expert with Howrey & Simon in Washington, DC, explained that this ruling impacts the Web too. "Although the Tasini court was only presented with a question about commercial database content, the court's reasoning leaves little doubt that the ruling also extends to works of authorship placed on the Web."

Fisch added: "Tasini does not create an electronic rights compulsory license. Therefore, an author and a publisher must each agree to the terms of the license before the work can be made electronically available." In practice, this means that publishers that have failed to obtain an electronic rights license to freelance articles prior to placing them online, no matter the cause, must now remove them from all electronic media.

"The Tasini ruling is a very, very big issue for the online industry," concludes Kupferschmid, "because database providers like LEXIS-NEXIS have a lot of information that was created--and is therefore still owned--by freelance writers."

Impact on the Industry

Yet, the online industry has greeted the news with surprising disinterest. When, 11 days after the Tasini ruling, I spoke with Bert Corelli, director of content strategy and acquisition for the Americas for Dow Jones Reuters Business Interactive (DJRBI), he appeared unaware of, or at least unconcerned about, the decision. …

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