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Publishers Lose Database Copyright Appeal
IQ writes "A federal appeals court has unanimously overturned a lower court ruling on the copyright of a freelance published work in an electronic database.
Read more about it in the New York Times " Free login, blah blah. Interesting ruling though - essentially, the database companies have been told that they cannot include the work of freelance contributors without the permission of the freelancers. Seems elementary to me, but a step in the right direction for information rights.
The really odd thing about this case is that the publishers are whining about the double-bladed nature of very laws that they use to protect their industry. Live by the sword, die by the sword.
And what objections to the ruling do their lawyers come up with? "Oh, the poor researchers will be denied access to these materials!" Yeah, well, thos researchers that can't afford to pay Lexis-Nexis's or NYT's exhorbitant fees are also denied access to those materials, and I don't see the learned counsel whining about that. There's big bucks in them thar databases, and the people who help create that value should get a cut.
"This ruling has the the effect of tampering with the historical record." Not really. The articles still exist in private electronic and paper archives. They can be retrieved by anyone with a bit of diligence, and they can be put back online just as soon as the NYT pays up.
Of course, those are just objections they came up with after the fact. What did they say in the trial? That the databases consituted a revision to an anthology of the works? That's just disingenuous. I'd love to read a brief detailing how they justified making that particular connection.
-k. ^-^ ^D
These publications had specifically bought "First North American Serial Rights" (FNASR) from the authors -- this is supposed to mean that if your article appears on Sept. 28, 1999, they will have to pay you again if they want to sell a copy of it again after that date.
Because they had not bought specific rights to republish the articles after the first publication, the newspapers tried to argue that the inclusion in the database was part of the initial publication (even though some of the articles were written years before the databases existed). The ruling is that perpetual publication in a database is not part of FNASR
Under American law, FNASR is the default in the absence of specific terms to the contrary.
Of course, these days the freelance contract does include signing away electronic rights -- the articles in the suit were written 10 years ago.
Another side comment: freelance work is rarely "work for hire" -- in fact they are usually opposites. "Work for hire" means that the product produced is a product of the corporation and not the individual -- a product is "work for hire" by default only if it is part of the job description of a salaried employee. Other cases would require specific contract terms. In freelance journalistic writing, "work for hire" terms are generally considered completely unnacceptable (of course, it's different for writing marketing copy, etc.) If it were "work for hire" the publication would own the copyright and have all rights exlusively.
The National Writer'a Union site has the full text of the ruling.
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When you do freelance work for newspapers or magazines they're pretty straightforward about the fact that they own the nonexclusive right to republish the piece you sell them. This isn't something they hide or sneak into arcane legal language -- you're on a work for hire arrangement.
What happened here is an ongoing debate over whether publishing an article in an electronic form such as a web site is the same as publishing it in other venues. Is an article appearing in the New York Times web site archives in the same status as say an article appearing on their microfilm archives? I go to the library occasionally to use the microfilms of the NYT and the freelance authors don't get compensated for the articles I print out. Should they if I go to the web NYT instead?