Publishers lose ground to freelancers in copyright case

The US Supreme Court has just wrenched a key part of US copyright law out of the age of the printing press and into the age of digital cyberspace.

In a ruling with important ramifications for American publishers, the nation's highest court ruled yesterday that newspapers and magazines may not display printed freelance work on websites or electronic archives without first obtaining specific permission from the freelancers.

It is a major defeat for US publishers and media companies. The court's 7-2 decision embraced a reading of copyright law that could spark infringement claims against publications by tens of thousands of writers, illustrators, and photographers.

Justice Ruth Bader Ginsburg, writing for the majority, said publishers violated copyright law because the electronic databases reproduced and distributed the freelancers' work alone and not in context as part of the entire newspaper or magazine. "Both the print publishers and the electronic publishers, we rule, have infringed the copyrights of the freelance authors," she wrote.

The issue of potential damages faced by the publishers and the prospect of having to purge databases of material used improperly in the past were left to be resolved by publishers and authors in negotiations. In addition, the issue of any remedial action was left to a New York federal judge.

"The New York Times and other publishers face billions of dollars of potential liability for selling articles to which they hold no copyright," says Elizabeth Bunn of the UAW, with which the National Writers Union is affiliated.

Others hesitate to go that far.

"Even though it's a clear victory for freelancers, it doesn't necesssarily mean these companies are going to be subject to billions of dollars of liability," says John Morton, an industry analyst in Silver Spring, Md. "The key ... is just how far back [in time] they're required to go."

The case, New York Times v. Tasini, stems from a lawsuit filed eight years ago by six freelancers against the New York Times, Time Inc., Newsday, Lexis/Nexis, and University Microfilms. At issue was whether a one-paragraph provision in the Copyright Act of 1976 grants newspaper and magazine publishers the power to post freelance articles on their Internet editions and to sell those articles to electronic archive services.

In 1997, a federal judge ruled in favor of the freelancers. Two years later, a federal appeals court panel in New York City agreed.

By now, virtually all media companies have changed copyright procedures. Most now ask freelancers' permission to distribute electronically when they buy the original print version of a work.

(c) Copyright 2001. The Christian Science Monitor