Tuesday, June 26, 2001

Publishers Must Seek Authors' Permission for Electronic Reprints, Supreme Court Rules By ANDREA L. FOSTER Washington 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. Background articles from The Chronicle: Supreme Court Hears Arguments in Electronic-Publishing Case (4/13/2001) Library Groups Favor Writers in Battle Over Electronic Publishing (3/9/2001) Supreme Court to Hear Case Over Copyrights and Electronic Distribution (11/24/2000) Document: Text of the decision Easy-to-print version E-mail this article

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