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U.S. Supreme Court gives freelancers possibly pyrrhic victory over publishers in copyright case.

Publishers may no longer treat the online accessibility of freelance writers' work an extension of their practice of storing back issues in archival databases, a practice that formed a major part of the losing parties' defense.

The U.S. Supreme Court ruled 7-2 on June 25 that a group of newspaper and magazine publishers infringed the copyrights of freelance contributors by making their articles accessible without permission in electronic databases following publication. In the majority opinion on the case, known as The New York Times Co. v. Tasini (after Jonathan Tasini, president of the National Writers Union), Justice Ruth Bader Ginsburg wrote:

"Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution."

Since late March, many newsletter publishers have received notices from online database services that they may be liable for class-action lawsuits filed by freelance authors against the services. This decision opens up that possibility. Publishers--some of whom told NL/NL they weren't that worried--were urged to "indemnify the services for any losses, including legal judgments and expenses, that may be incurred in the lawsuits and are attributable to material supplied by the publishers."

The online databases commonly used by newsletter publishers include defendants Reed Elsevier Inc. (operator of Lexis-Nexis), West Publishing Corp., and Dow Jones Reuters Business Interactive LLC.

The decision principally affects articles, photos and artwork produced before freelance contracts began providing for electronic use about eight years ago. However, Lexis-Nexis vice president and general counsel Michael Jacobs was quoted in The New York Times saying that he expected the loss to be minimal among its three billion documents from 30,000 sources.

Arthur Sulzberger Jr., chairman of The New York Times Company ("The Newspaper of Record"), described the decision as a loss for both sides. "The Times has lost this case and will now undertake the difficult and sad process of removing significant portions from its electronic historical archive.

"That is a loss for freelance writers because their articles will be removed from the historical record. Historians, scholars and the public lose because of the holes in history created by the removal of these articles from electronic issues of newspapers such as The Times."

Similarly, John F. Sturm, president and CEO of the Newspaper Association of America, said, "We are disappointed that the Court ruled as it did, particularly since the result is that no one wins.

"Most importantly, the public loses its access to complete and comprehensive newspaper and magazine archives. Publishers lose because they will have to spend considerable amounts of both time and resources to expunge freelance materials from their database. And, ironically, even the freelancers lose, particularly those who wish to have their work remain available as is."

Although Tasini said a system could be set up whereby the National Writers Union could serve as a clearinghouse to settle the suits, publishers dismissed his suggestion as unworkable.

They noted that the Union's 7,000 members were only a small fraction of the tens of thousands freelance writers covered by the decision.
COPYRIGHT 2001 The Newsletter on Newsletters LLC
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2001, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Publication:The Newsletter on Newsletters
Date:Jun 30, 2001
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