Database versus copyright -- should e-mails have delete dates?
This was kindly sent by Graeme Hart. Before you discuss this news
with your colleagues get a few bottles of water ;-) It's going to
cost you a lot of saliva or blisters on your fingers.
Academic information isn't disseminated any longer using cotton based
paper but on volatile electronic form. Cotton based paper could last
for centuries, current acid paper for a few decades, but what about
Sent-by: Graeme Hart <email@example.com>
Tuesday, June 26, 2001
Publishers Must Seek Authors' Permission for Electronic Reprints, Su-
preme Court Rules
By ANDREA L. FOSTER
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 addi-
tional compensation. The court's decision was signed by seven of the
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 Asso-
ciation. 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 exag-
gerated the extent to which electronic databases had replaced the
"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 Associa-
tion of Research Libraries.
Added Peter A. Jaszi, a law professor at American University: "This
decision seems to be a wonderful reaffirmation of the central impor-
tance 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
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 ar-
ticles, 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 Dis-
trict 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 elec-
tronically. 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 newspa-
pers and magazines. That brief was filed by Ellen Schrecker of Ye-
shiva University and Stanley N. Katz of Princeton University, among
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