Subject: Publishers Must Seek Authors' Permission for Electronic Reprints, Supreme Court Rules
david@ninch.org
Date: Tue, 26 Jun 2001 11:16:09 -0400 (EDT)
Date: Tue, 26 Jun 2001 11:16:09 -0400 (EDT) Message-Id: <200106261516.LAA24513@che-master.merit.edu> From: david@ninch.org To: ninch-announce@ninch.org Subject: Publishers Must Seek Authors' Permission for Electronic Reprints, Supreme Court Rules
This article from The Chronicle of Higher Education
(http://chronicle.com) was forwarded to you from: david@ninch.org
Tuesday, June 26, 2001
Publishers Must Seek Authors' Permission for Electronic
Reprints, Supreme Court Rules
By ANDREA L. FOSTER
In a decision supported by academic-library groups and some
scholars, the Supreme Court ruled overwhelmingly on Monday
that media companies may not republish freelance writers'
works in electronic form without their prior approval.
At issue in the case, The New York Times Company v. Jonathan
Tasini, was whether copyright law allows publishers to
transfer authors' works into databases and onto CD-ROM's
without providing them additional compensation. The court's
decision was signed by seven of the nine justices.
Major publishers, such as the New York Times Company, the
Washington Post Company, and Reed Elsevier Inc., which owns
Lexis-Nexis, argued that articles republished electronically
were merely "revisions" of the original publications and thus
allowable reprints under copyright law. They also said that a
ruling in the authors' favor would require deleting freelance
articles from online databases and CD-ROM's.
But Jonathan Tasini, president of the National Writers' Union
and the lead plaintiff in the lawsuit against The New York
Times, argued that online versions of articles are entirely
new editions that require writers' prior approval.
The case not only pitted freelance writers against publishers.
It set scholars against scholars and academic libraries
against publishers.
Mr. Tasini drew support from the Association of Research
Libraries, the American Library Association, and the National
Humanities Association. Those groups said that freelance
articles, even if they were excluded from CD-ROM's and
databases, would still be available in printed versions and
microform copies. They said publishers had exaggerated the
extent to which electronic databases had replaced the physical
library.
"It's important to note that this decision recognizes that the
true historical record remains available through libraries and
archives," said Prudence S. Adler, assistant executive
director of the Association of Research Libraries.
Added Peter A. Jaszi, a law professor at American University:
"This decision seems to be a wonderful reaffirmation of the
central importance of the creative individual in our copyright
system." Mr. Jaszi helped the library groups prepare their
brief for the Supreme Court.
He said the case was also significant because it marked the
first time the court had ruled on the issue of how copyright
law should be applied to digital technology. The court is
expected to confront other related issues involving the
copying of digital music and video.
Writing for the majority, Justice Ruth Bader Ginsburg said
that print publishers and electronic publishers infringed on
the copyrights of the freelance authors whose works were
disseminated online. Their articles, she wrote, are not
reproductions of the originally published articles "because
the databases reproduce and distribute articles standing
alone" and not as part of a "collective work."
Justice John Paul Stevens, who wrote the dissent and was
joined by Justice Stephen G. Breyer, agreed with the
publishers that electronic reprints of the freelance writers'
works are simply revisions of their original writings.
The court left it up to the U.S. District Court for the
Southern District of New York to decide the appropriate remedy
for the authors whose copyrights were infringed. In 1997, that
court sided with the publishers, but the decision was reversed
in 1999 by the U.S. Court of Appeals for the Second Circuit.
The Supreme Court did not express a preference for how authors
should be compensated in the future. The library groups favor
a collective-licensing system for writers' works, modeled on a
system used by the music industry. Under that proposal,
publishers would set up a fund to pay freelance writers each
time their works were reprinted electronically. The Supreme
Court's majority opinion singled out that proposal for mention
as one method for compensating writers.
The ruling was a blow to some well-known historians who had
filed a brief in support of the publishers. Ken Burns, Doris
Kearns Goodwin, David M. Kennedy, David McCullough, Jack N.
Rakove, and Gordon S. Wood argued that the possibility of
erasing articles from electronic databases would harm
scholarly research.
Another group of historians disagreed and filed a brief in
support of Mr. Tasini. They said professional historians rely
more on primary sources -- such as diaries, letters, and
memoirs -- than on newspapers and magazines. That brief was
filed by Ellen Schrecker of Yeshiva University and Stanley N.
Katz of Princeton University, among others.
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Copyright 2001 by The Chronicle of Higher Education
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