On September 24, 1999, the Second Circuit Court of Appeals reversed a federal district court decision against the plaintiffs in Tasini et al. v. New York Times et al. The appeals court ruled that the reuse of freelance work on databases and CD-ROMs without the authors' express permission constitutes copyright infringement. This is a major victory for all independent creators.

The purpose of this document is to explain the ruling and to suggest what writers should do next both collectively and in our individual contract negotiations.

WHAT THE DECISION SAYS:

Q. In a nutshell, what did the ruling say? A. The judges ruled that, even when there is no contract relating to electronic rights, a print publisher may not put the writings of freelancers on databases (such as Nexis) and CD-ROMs that include the entire textual content of the print publication. Q. Does this mean that freelancers automatically retain electronic rights to their printed work? A. Yes, under the Copyright Act of 1976, the writer, in the absence of a written contract, transfers only First North American Serial Rights and retains all other rights. The right to electronically reproduce freelance articles is not included in the transfer of First North American Serial Rights. The judges also affirmed the lower court's ruling on publishers' efforts to acquire rights by stamping a statement on the back of checks. Writers do not transfer rights to an article by simply endorsing such a check. Q. Why did the district court rule in favor of the publishers? A. Judge Sotomayor based her conclusion on an interpretation of Section 201(c) of the Copyright Act of 1976, which deals with the copyright in "collective works." She focused on the language in Section 201(c) that gives the holder of the copyright in the collective work the limited privilege of reproducing and distributing revisions of the compilation. The judge came to the bizarre conclusion that certain kinds of electronic databases amount to nothing more than a "revision." As the appeals court pointed out, reading "revision" that broadly causes "the exception to swallow the rule." Q. How do my individual electronic rights in an article relate to the publisher's collective electronic rights in all of the articles it has published? A. If you have not expressly transferred to the publisher the right to reproduce your work electronically, the publisher cannot legally license your articles to databases. The publisher only has the right to license database rights to articles that were written by employees and articles written under contracts that transfer electronic rights. Q. What about other kinds of electronic rights? A. This decision reaffirms the NWU's position on websites. Publishers do not automatically have the right to put your work on their own website. Web rights are separate from print rights and must be licensed separately. See the National Writers Union Web-rights Policy. Q. What does the ruling mean for the NWU's Publication Rights Clearinghouse (PRC)? A. It means that publishers now have more reason than ever before to negotiate collective licensing agreements with the PRC. As long as writers stand together and refuse to sign electronic rights over to publishers in their individual contracts, the PRC will be in a strong position to negotiate additional fees for these rights. And that means that writers will be able to share in the revenue generated by the use of their work in new media.

National Writers Union, UAW Local 1981 113 University Place, 6th Floor New York, NY 10003 Ph: 212-254-0279 / Fx: 212-254-0673 Email: nwu@nwu.org Web: http://www.nwu.org

Tuesday, April 01, 2003 15:50