Ruling May Ravage Content on Sites

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The recent Supreme Court decision broadening free-lancers' rights to their own works has major implications for most Web publishers and other electronic database providers.

The decision in New York Times Co. Inc. v. Tasini means that newspaper and magazine publishers no longer can assume they have a right to publish a free-lancer's work on their Web sites or CD-ROMs unless they explicitly negotiated that right.

More significantly, it means that works already translated from traditional to electronic media without prior special permission may have to be removed from the Web site or database unless additional permission is obtained.

Though there is some small potential for wiggle room in the court's decision, the vast majority of Web and database publishers likely will not have the ability or mettle to test these possible exceptions and would be better served by removing the articles in question before they are hit with a lawsuit for copyright infringement. Of course, it is possible to go back to the writers to request electronic republication rights. The amount e-publishers will need to pay to obtain rights for past publications, however, is unclear.

The landmark Tasini case was brought by a number of free-lance authors who had published articles in the print versions of the New York Times, Newsday and Time magazine from 1990 to 1993. These print publishers licensed the articles to the Lexis/Nexis online service and to various providers of commercial CD-ROM database products. When the articles were first published, the print publishers did not have agreements with the free-lance authors to republish the articles in electronic formats. However, the print publishers had registered copyrights in the print publications as "collective works."

Under the Copyright Act, the author of a "collective work," meaning a collection of individual works, holds a copyright in the collective work as a whole. The author of each individual work, however, keeps the copyright in his or her individual contribution. For example, this newspaper as a whole would be considered a "collective work," with separate copyrights vested in the publisher for the whole newspaper and in the author for this particular article.

Normally, the owner of a copyright can prevent others from reproducing or distributing the copyrighted work. The rules are different when the work is part of a collective work. The Copyright Act gives the owner of the copyright in a collective work the "privilege" of reproducing or distributing each individual author's contribution, without permission, as part of the collective work or as part of a "revision" to the collective work or a "later collective work in the same series."

The issue before the Supreme Court in the Tasini case was whether this collective-work privilege permitted the print publishers to allow the republication of individual articles in electronic databases. The question asked in Tasini was whether republication in electronic databases is simply a republication, revision or later edition of the original collective work. The court answered no.

According to the court, the Lexis/Nexis database and the commercial CD-ROM products at issue were not covered by the collective-work privilege because a user of the electronic databases would not perceive the individual articles to be part of any broader collective work. A researcher retrieving a Times article from Nexis, for example, would be given the article in isolation, without the surrounding context of the other articles contained in the magazine in which the article originally appeared. The researcher would retrieve only the individual article, the copyright to which is owned solely by the author, not the entire collective work.

What about that "wiggle room" mentioned above?

The court focused heavily on the facts of how the particular databases at issue were presented to readers. It may be possible to configure a database or an HTML document to faithfully reproduce the context of the original collective work and thereby to fall within the collective-work privilege. Also, the court left open the issue of whether certain types of Web sites could be considered "libraries" and therefore subject to the Copyright Act's library exceptions. However, pursuing such potential loopholes is not for the faint of heart or shallow of pocket.

Tasini is certain to change the bargaining relationship between free-lancers and e-publishers. Though some major publishers are threatening to delete archived articles, the demand for easily searchable databases will only increase as the Web becomes even more ubiquitous. It is likely that, as with many other large-scale copyright problems, some form of blanket license or automatic permission system will be developed. In that event, it may be that free-lancers will be able to avoid the now common "all media" clauses in their independent contractor agreements. For now, the full economic and legal fallout of Tasini is uncertain.


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