Thursday, March 29, 2001

Justices Consider Status of Digital Copies of Freelance Work
There was considerable debate throughout the argument about what actually happens when publishers transmit an issue to Lexis/Nexis, a division of Reed Elsevier Inc. that is also a defendant in the case, for inclusion in its electronic database. Justice Stephen G. Breyer said the outcome might depend on whether "the whole electronic analog of the entire paper is transmitted at one instant" or "article by article."

Mr. Tribe said that while a separate electronic file was created for each article, so that the articles can be identified and retrieved, "the technology shouldn't obscure what's happening." The entire newspaper is essentially transmitted at once, he said in an effort to bolster the view that inclusion in a database does not change the basic concept of an issue of the newspaper.

He said the freelancers' view of the law "is really quite a Luddite theory, that putting this stuff in a way that the 20th and 21st century has to have it is an infringement."

But Mr. Gold argued for the freelance writers that "the preparation of the article files as separate article files" for transmission to the database was itself the first in a chain of multiple copyright-infringing acts. It was the "equivalent of printing each article as an individual article that can be combined with any of a million others in a new work," he said.

If that is an accurate description of the transformation from print to database, the publishers would be infringing the freelancers' copyrights because under the law, in the absence of an agreement to the contrary, authors retain their individual copyrights even as the publisher of a collective work like a newspaper or encyclopedia holds the copyright to the complete product or a revision of it. Publishers hold the copyright on individual articles produced by staff writers, as opposed to freelancers.

Since the mid-1990's, publishers have generally required freelance authors to waive their copyright in any electronic republication. So this case, New York Times v. Tasini, No. 00-201, has little implication for current practice in the publishing industry. But if the publishers lose, they face the prospect of considerable financial liability for past copyright infringement. The issue has been joined in new lawsuits filed recently by freelancers against publishers around the country.
http://www.nytimes.com/2001/03/29/technology/29WRIT.html?pagewanted=all

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