Justices hear freelancers' claims to publishing rights

Justices hear freelancers’ claims to publishing rights

• Arguments in a case before the high court present the question of copyright ownership of archived material in a digital era.

In a case asking the U.S. Supreme Court to interpret a three-decade-old federal statute to emerging technology, freelance writers faced off against publishers on March 28 about the question of copyright ownership to contributed material. The decision from the justices will decide what happens to thousands of newspaper and magazine articles archived on electronic databases.

Jonathan Tasini, president of the National Writers Union, and several other freelancers sued several periodicals in 1997 for copyright infringement of articles the publications sold to electronic databases such as NEXIS. The publications, which include The New York Times, Newsday and Sports Illustrated, claim the contributed articles are part of a “collective work” and protected by section 201(c) of the Copyright Act of 1976. The electronic databases are simply revisions of the publications, according to the publishers.

Much of the oral arguments at the Supreme Court centered on the similarities and differences of the print world and the electronic world.

A prevailing theme of questions from several of the justices concerned what exactly the publications send to the database companies and how they send them — one article at a time or entire publications at once. Laurence Tribe, who represented the publishers, assured the justices the file of the entire publication is sent at once and the database services then index them, but keep the written article intact.

“It is not exactly the same thing but a revision,” Tribe said. “If it’s not, it’s hard to say what would be a revision.”

Laurence Gold, who represented the freelancers, argued that because the articles do not appear as they were in the original layout they form a new work and not simply a revision.

Justice John Paul Stevens asked why selling the publication to an electronic database differs from selling it to a library where people can copy specific articles. Gold stressed that freelance writers never see any of the money from commercial databases such as NEXIS.

Much of Tribe’s argument focused on the benefit to society the electronic databases provide and the damage that would occur should the publishers be required to remove all the articles contributed by freelancers.

Justice Stephen Breyer voiced his concern about the possible deletions by saying a part of history would be wiped out because it would be too expensive to locate authors of specific articles and negotiate a license to use them in an electronic system.

In 1997, the federal district court in New York ruled in favor of the publishers, agreeing that the electronic versions are revisions of the original articles. In reversing, the U.S. Court of Appeals in New York (2nd Cir.) ruled that a database containing thousands of periodicals can “hardly be deemed a revision of each edition of every periodical it contains.”

(New York Times v. Tasini; Counsel: Laurence Tribe, Cambridge, Mass.; Laurence Gold, Washington, D.C.) — EH

Related stories:

• Justices will hear case on rights to articles by freelance writers (11/6/2000)
• Freelance writers must agree to electronic republication (10/4/1999)
• Freelancers lose claim over electronic publishing rights (8/25/1997)

© 2001 The Reporters Committee for Freedom of the Press

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