Freelancers Own Electronic ‘Reprints’

Freelance writers, not the publishers of newspapers or magazines, own the copyright to their articles that appear in electronic databases, the Supreme Court ruled Monday, a decision that could cost publishers millions of dollars in fees and may force them to delete past articles from their electronic files.

The 7-2 ruling answers a question that probably should have been answered by publishers at least a decade ago. When a newspaper or magazine is sent electronically to a computer database such as Lexis/Nexis, who owns the copyright to the material?

The publishers said they owned it all because the electronic version simply reproduced the newspaper or magazine.

But the Copyright Act of 1976 says that in a “collective work,” the copyright “vests initially in the author of the contribution . . . in the absence of an express transfer of the copyright.” The freelancers argued that the electronic version is, in essence, a new collective work.

Citing the words of the law, the justices concluded that freelancers who had not signed away their rights retain their claims to the articles, even when they appear in electronic versions of the New York Times, Newsday or Sports Illustrated.

Justice Ruth Bader Ginsburg said this dispute concerned “massive databases loaded with multitudes of individually retrievable articles.”

Looked at this way, it is clear, she said, that the copyright act protects the author, not the publisher. “If there is a demand for a freelance article either standing alone or in a new collection, the freelancer can benefit from that demand. After authorizing initial publication, the freelancer can sell the article to others,” she said.

Ruling Grew From ’93 Suit

Despite its defeat in Monday’s ruling on New York Times vs. Tasini, 00-201, the publishing industry has been on notice about this issue for years.

In 1993, Jonathan Tasini, president of the National Writers Union, filed a copyright suit in New York on behalf of himself and other freelance writers. He maintained that, because the databases were reproducing and selling articles separately, the freelancers were entitled to the extra fees for their copyrighted works.

Howard Besser, an associate professor of information studies at UCLA who specializes in intellectual property, said that in recent years the trajectory of copyright law had been moving in favor of publishers.

“The most important impact of the ruling is that it reaffirms that copyright is about authors and creators and not consolidators and publishers,” Besser said.

The case now will return to a lower court, where efforts will be made to resolve the conflict. The publishers have the option to pay the freelance contributors or delete the articles. In their comments Monday, most of the publishing firms said they were planning to delete articles.

But in an interview after the ruling, Tasini called on the publishers to work with him to determine an equitable way of paying freelancers who are owed money. He has argued for an arrangement similar to the way musicians are paid royalties for their work. His union has devised one called the Publications Rights Clearinghouse, which would arrange for the author to be paid each time an article is reprinted.

“This can be done relatively painlessly,” he said. “If we can negotiate and use the licensing system, then they won’t have to go through endless litigation.”

But Catherine Mathis, a spokeswoman for the New York Times, said the newspaper had no plans to negotiate with the union, and Arthur Sulzberger Jr., chairman of the New York Times Co., said it “will now undertake the difficult and sad process of removing significant portions from its electronic historical archive.”

Mathis said an estimated 27,000 freelancers had contributed about 115,000 articles--or about 8% of the total--to the New York Times between 1980 and 1995, when contracts began to include the purchase of electronic rights.

The other publishers in the case, including Tribune Co., which owns the Los Angeles Times and Newsday, said they had not calculated how many stories were in question.

And Michael Jacobs, vice president and general counsel for Lexis/Nexis, said he did not know how many of its 3 billion documents would be affected by the court’s decision. He said it would be up to the individual publications to let the database know which documents to expunge. He also said he thought the decision would extend beyond the four defendants.

“I would imagine all publishers would be looking at all their articles and determine if they have issues with rights and electronic formats,” Jacobs said.

A group of popular historians, including author Doris Kearns Goodwin and filmmaker Ken Burns, had filed a brief in the case siding with the publisher. They argued that the historical record would be damaged if articles and photographs were removed from electronic libraries.

Another set of writers and historians sided with the freelancers, arguing that the publishers’ claims were overblown.

Jonathan Kirsch, a copyright expert and Los Angeles Times book reviewer, said the ruling represents an important affirmation of copyright law.

“The Supreme Court has confirmed that copyright exists even in the Information Age.”

Another who expressed pleasure at the outcome was Marybeth Peters, the U.S. register of copyrights, who had sided with the writers in the case. She said the case boiled down to how authors should be compensated for the publishers’ unauthorized use of their work.

Valuable Records Could Be Lost

But John F. Sturm, president of the Newspaper Assn. of America, said the ruling will cause the destruction of many valuable records.

“Philip Graham, former publisher of the Washington Post, once said that newspapers are the first rough draft of history,” he said. “What the court has done today is deny future generations access to a complete version of history.”

While Monday’s ruling settles the matter for the past, it will not necessarily affect the future. By revising their contracts, publishers can insist that writers sign away their rights to electronic republication of their articles.

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Savage reported from Washington and Kennedy from Los Angeles.