High court to decide who owns newspaper archives

Internet-based electronic archives of newspaper and magazine articles have revolutionized the business of current-events research.

In years past, researchers would have to thumb through hundreds of pages of bound volumes or scroll through scores of microfiche editions in search of a single article. In contrast, it is now possible to electronically search hundreds of different publications and view the results within seconds.

To media companies like Lexis/Nexis, it is a highly lucrative business venture. But to the freelance writers who authored many of the articles being retrieved, it is cyber-piracy.

The writers say they sold their articles for one-time-only publication in a newspaper or magazine only to find their work available internationally on a continuing basis on the Internet or being redistributed and sold via electronic archive services without their consent.

The media companies say they have violated no laws and that many freelance writers don't object to the wider circulation their works have received.

On Wednesday, the dispute goes to the US Supreme Court, where the justices are being asked to examine the scope of US copyright law at the dawn of the digital age.

"These media companies are the biggest thieves of copyright material on the planet," says Jonathan Tasini, a freelance writer and president of the National Writer's Union. "We deserve a fair share of the digital revolution's revenues."

Mr. Tasini is one of six freelancers who filed a potential landmark copyright-infringement lawsuit eight years ago against The New York Times, Time Inc., Newsday, Lexis/Nexis, and University Microfilms.

The justices' task will be to decide whether a provision in the Copyright Act of 1976 grants newspaper and magazine publishers the authority to post freelance articles on their Internet editions and make those same articles available to electronic archives.

If the court agrees with the freelance writers, it could expose virtually every newspaper and magazine publisher in the US to potentially billions of dollars in liability to compensate for decades of copyright infringements involving the work of tens of thousands of freelance writers, photographers, and illustrators.

The publishers insist they are on firm legal ground. In their brief to the court, filed by Harvard Law School Professor Laurence Tribe, they argue that copyright law is written broadly enough to encompass distribution of freelance articles beyond the paper pages of a newspaper or magazine. Mr. Tribe says copyright law allows for distribution of "revisions" of a newspaper or magazine, and that an Internet archive version of a freelance story is one such permissible revision.

Not so, counter lawyers for the freelancers. "What [the publishers] are doing is making electronic reproductions and distributions of the authors' copyrighted contributed articles," writes lawyer Patricia Felch in her brief on behalf of the writers. They are doing it, she says, without the writers' permission and without paying them.

In 1999, a unanimous federal appeals court in New York agreed with the freelance writers, a decision that sent shock waves through the American newspaper and magazine industry. Most media companies have responded to the litigation by changing the way they contract with freelancers. Many freelance contracts now include provisions dealing with electronic archives and Internet circulation.

Tasini is hopeful that, if his lawsuit is successful, it will spark a move by freelancers to insist on being paid a royalty every time an article is retrieved, rather than signing a one-time contract that eliminates the possibility of future payments.

The lawsuit has also triggered a debate among scholars over what might happen to existing electronic archives, should the writers win. Some analysts believe publishers might purge their electronic databases of all freelance material rather than attempt to track down the writers and negotiate individual settlements.

Both sides in the dispute have lined up some big guns to support their positions. On one side are documentary filmmaker Ken Burns, historian Doris Kearns Goodwin, and biographer David McCullough, who urge the court to side with the publishers and avoid an outcome that might lead to the destruction of electronic archives that they say comprise an important historical record.

On the other side are a group of scholars, including Ellen Schrecker of Yeshiva University and Stanley Katz of Princeton University, who argue that "no serious historian would present a work based primarily on contemporaneous news accounts." Their brief adds that even if electronic databases disappear, archives of the original newspapers and magazines will still be available to scholars.

(c) Copyright 2001. The Christian Science Monitor