United States Supreme Court has announced it will hear the appeal New
York Times v. Tasini. In hearing this case, the Supreme Court will
decide the rights of freelance authors and perhaps the future of digital
The high court
has taken on another thorny dilemma.
Every day, freelance
authors create content for newspapers, magazines, journals, book chapters,
etc. Among the lowest-paid people in the media/information industry, freelance
authors remain essential to newspaper and magazine publishers who need
content for their publications. After all, the publishers sell content:
interesting, informative and/or entertaining articles, items that consumers
will want to read, consider, or enjoy, and tell their friends about. Publishers
sell their periodicals to subscribers, offer publications for sale on newsstands,
in supermarkets, book stores, etc. Advertisers who want to reach readers
with their own sales messages pay publishers for space in the publications.
Then many publishers sell or license the content to commercial database
companies and/or information aggregators, who sell it again to their customers
through another increasing range of channels. In addition, the publishers
often give "permission" for libraries, teachers, and others to make copies
of this content — for a fee. Publishers have become their own electronic
redistribution channels through archives on their own Web sites.
It is the publishers'
sales of the content of the periodicals to the commercial databases, the
aggregators, and the resale(s) of the content by these corporations,
raising the issue of fairness to the freelance authors. The freelance authors
do not get any of the money from the publishers' subsequent sales of their
work. As a general rule, unless freelance authors have specifically contracted
away their copyright rights to resales, they retain those rights — but
publishers do not pass along any of the money that they have received for
publishers either have had no written contract with freelance authors or
contracted for first serial publication rights in the United States. Either
way, that meant that the proceeds of subsequent sales of an article should
go to the author — the freelance writer. The author's subsequent sales
might be to other publications, or they might resell their article(s) for
publication in different media, such as electronic media or microform.
But it is, and has been, the author's right to republish his or her work
and resell it.
The Freelance Writer's Issues
are now involved in several lawsuits against publishers, commercial database
companies, Web-based aggregators, etc. The authors are asserting their
right to be compensated for subsequent sales of their original works by
these publishers, document delivery services, and/or information and database
aggregators. These subsequent sales might encompass copies of articles
downloaded from commercial providers such as LEXIS-NEXIS, Dialog, and Factiva,
or Web-based sources such as Contentville or Northern Light. Subsequent
sales might also include Bell and Howell Information and Learning (formerly
UMI), UnCover, or other document delivery services that will copy, then
mail, fax, e-mail, or otherwise transmit copies of the author's work to
a customer. The latter could include reproduction from non-digital media
are not compensated for these subsequent sales of their works, even though
the database and document delivery services seem to charge customers for
the assurance of copyright compliance. Where is the money going? To the
publishers. Have the publishers shared it with the authors? No. Have the
commercial databases and/or the aggregators looked beyond the publishers'
representations as to copyright compliance, making sure that the authors
who retained copyright are paid at least part of the fees going to the
publishers? No. There's the rub. Authors like Gerald Posner (plaintiff
in the suit against Bell & Howell and others), who posts some of his
works on his own Web page, complains about the sales of works by the publishers.
"Mr. Posner says Bell & Howell charges '$4 and change' for his book
excerpt, which first appeared in Time magazine in 1996. While the
writer posts the piece for free on his personal Web site, 'that doesn't
mean I want to let other people sell it,' he said."2
Nor does he intend to forego the income from sales of his works when they
do sell it.
From the publishers,
the authors want some, if not most of the money paid by the aggregators,
commercial databases, and document delivery services to the publishers3
for access to and permission to make copies of their articles. In addition,
the authors want a formula for future payments for electronic use of freelance
articles under new agreements that specify sharing of royalties from electronic
republication or licensing of freelance articles. They also want the aggregators
and document delivery companies to turn over the copyright surcharges charged
to customers who downloaded articles from the aggregator's databases or
articles that were sent (by fax or photocopy of the articles) by document
delivery services — who paid the publisher's set copyright fees.
Those issues all
relate to older articles. Many publishers now, as a general rule, contract
to pay authors for first serial and future sales of their articles
— up front. Whether the authors feel the publishers are forcing these contracts
down their throats for insufficient consideration4
is another issue. [See the "Author Organizations and
Registry" sidebar on page 50, specifically the ASJA's Contract Watch
electronic newsletter.] At least one newspaper publisher believes that
authors will make more under these new contracts with a higher fee than
they ever could hope to recoup under a royalty agreement.5
Other newspapers are being threatened with lawsuits because of the allegedly
overreaching terms of their new author contracts (trying to capture all
electronic and other resale rights for past, as well as present and future
creative works, published with the newspaper).
believe that the authors are being greedy, that they carry none of the
risk yet want all of the secondary income from the articles running in
a newspaper, magazine, or other periodical. Publishers also complain that
the aggregators have consistently failed to provide article level accounting
of use, and so they cannot possibly divide the royalties among the authors
appropriately — even if they wanted to. Besides, publishers ask, how could
they know how to contact each and every freelance author (or their estate)
who has ever contributed an article to a newspaper or other periodical
— or even determine whether they are alive or dead. That would cost more
than the trivial value of the $2.40 or less to which the author might be
who remained anonymous, put a lower value on electronic rights, pointing
out, "With our public archive of 750,000 articles, our royalties each year
per story are under 50 cents. If a writer wrote 50 weekly columns per year,
then we make $25 per story (not counting our labor to make the database).
If we split the revenue, we'd write a check for $12.50 for the online royalty
for the year — about what it costs a company to process a check. Cutting
checks for the occasional freelancer is way too burdensome. We've agreed
to pay freelancers a little more for each piece for Web and database rights.
And that extra payment is way more than the royalty above."6
Of course, freelance authors could counter that the $375,000 profit per
year really belongs to them, and that the publisher never had the right
to either sell or to keep the proceeds from those licenses. Each year,
the publisher will continue to reap the financial rewards on the rights
that the freelance authors never relinquished.
point to the migration of media that has occurred in the marketplace —
from hardcopy to microform to CD-ROM to online to Internet. Each migration
meant new and/or increased costs for equipment and people to ramp up the
new media. The authors didn't help pay for the costs publishers incurred
for the creation of the databases, and now that print income is declining,
the authors are not offering to charge less for their articles. Since it
is the publishers who incur the risks, they feel they should be able to
get a return on their investments in people, equipment, new media, and
content as they face constant and ever-faster-paced change in their markets.
The Commercial Databases and
and aggregators feel their contracts with the publishers (that provided
for payments to assure copyright compliance) should hold them harmless
from suits by authors. After all, they couldn't know the terms of the myriad
individual contracts (if they even existed in writing) between the publishers
and thousands of authors. As Bell & Howell put it in a press release7,they
deal with publishers who represent that they can grant the necessary rights,
and they work closely with publishers to assure copyright adherence. The
fight, according to Bell & Howell Information and Learning, lies between
the freelance authors and the publishers.
Along the same
lines, "Northern Light's chief executive, David Seuss, said ... that his
company compiles its database from articles that it buys from numerous
sources. With 20 million articles in the Northern Light database, Mr. Seuss
said he has no way of knowing the contract terms between each individual
writer and publisher, and relies on his supplier to assure that copyrights
are honored. A writer who believes his or her work is being illegally copied
'really should take it to the individual publisher,' he says. Nevertheless,
Northern Light will delete from its database any article that an author
can prove is copyrighted, Mr. Seuss said. Of the 20 million articles that
Northern Light has amassed, he added, the company already has deleted 'maybe
Bell & Howell
made this point in a private communication with the author:
the articles provided in a database are tremendously valuable, by virtue
of their aggregation and functioning as part of a larger group of quality
articles. However, the marginal value of any given article is minute. An
electronic database may comprise tens of millions of articles; annual subscription
to the database may be thousands of dollars, making the net value of each
article just pennies. Both the print publisher and the database provider
incur costs and add value in the production/publication of the information
and must recoup those costs. The ability to negotiate rights with publishers
(rather than individual authors) helps keep administrative costs down.
Libraries, consumers, corporations, and government agencies (major users
of these databases) have limited funding. Increases in royalty rates or
administrative costs will have an adverse affect on these groups' ability
to continue to provide access to their users.
As Letty Cottin
Pogrebin, president of the Authors Guild, put it, "Without our permission,
and without paying us, these databases are offering consumers electronic
access to our work and making millions from it." The authors feel that
few participants in other areas of commerce are as informed in and sensitive
to copyright law and rights as publishers, commercial databases, document
delivery companies, information aggregators, and other players within the
information industry. It is clear, the authors contend, that when an author
signs away one or more of his or her rights in copyright, the author retains
all other rights — including the right to copy or produce in another medium.
They feel that the publishers have been unjustly enriched by collecting
the copyright payments from aggregators and document delivery companies,
keeping it for themselves, rather than passing the payments (or even a
part of them) on to the authors. Furthermore, authors contend that the
aggregators are profiting from their works without seriously inquiring
into the possibility of infringement. In fact, according to the reports
about the Posner case, the National Writers Union (NWU) had notified several
companies of copyright infringement as early as 1994 (Gale), 1995 (Thomson),
and 1998 (Northern Light). Perhaps the publishers and aggregators are waiting
until the Supreme Court steps in to resolve the Tasini8
case once and for all before seriously addressing the issue.
How to Split a Pie Without
Authors want their
money and look to their professional organizations such as the National
Writer's Union, the Author's Guild, etc., for assistance in negotiating
contracts and getting their money.
they have already compensated the publishers for copyright permissions,
so the authors should go after the publishers, not them.
that the aggregators just make payments and fail to note which periodical
was copied, much less which author or article is being paid for — so they
have no idea whom to compensate or for how much. As an alternative, aggregators
suggest that authors holding reprint rights can request that their works
not be resold at all — that the authors can request the removal of their
articles from the database(s). Since many, if not most freelance authors
are also researchers, this invitation to compromise the integrity and completeness
of the article archives is less than appealing. Removing one's article
from the archives won't produce an income stream, nor will it help the
author's exposure. And it certainly will not make us information professionals
happy to have full-text collections rendered less comprehensive than they
content is not the only endangered species; other formats are also threatened.
News and World Report has already begun pulling articles and photographs
to which it does not hold copyright from the issues sent to Bell &
Howell for the microform edition. According to a news item in
Journal, a letter sent to subscribers from Bell & Howell stated,
"'For the time being, the publisher has removed specific text and/or photographs
for which the copyright remains with the author and/or photographer.' There
is no accompanying information available citing exactly what text and/or
photographs are missing from each issue. The B&H letter goes on to
say that it will 'resume delivering the full issue cover-to-cover once
the copyright issues have been resolved.'"9
publisher, Times-Warner, has reportedly told its aggregators to pull all
its titles (Time, People, Fortune, etc.) off the third-party
search services, e.g., Dialog, Factiva, etc., though — according to the
aggregators — still allowing direct distribution through the aggregators'
own services. In the case of one aggregator, Time-Warner also backed out
of a direct Web-based service under development. The move apparently reflects
publisher concerns over the impact of the Tasini case.
The NWU (affiliated
with the United Auto Workers Union) has assumed a leadership role in bringing
lawsuits and negotiating agreements for compensation of authors through
their Publication Rights Clearinghouse. The NWU brought and underwrote
the Tasini case, which quickly became the leading case on author
After the NWU negotiated
an arrangement with UnCover for royalty payments to authors, the NWU contacted
Steven Brill about his Contentville.com Web site. The site offers thousands
of articles, books, dissertations, television transcripts, etc., Members
had complained of finding their work on the site without compensation.
Narrowly averting a lawsuit, Contentville agreed to pay writers registered
with the Publication Rights Clearinghouse 30 percent of the download fee
(typically $2.95 per article). Contentville is facing the same pressure
from authors in Canada10
and some publishers are asking that all issues of their title(s) be removed
from the Contentville database (Village Voice and MacLeans,
So What Is an Information
Searcher to Do?
But what about
us searchers? How will this litigation affect our professional lives and
our service to our clients?
According to one
there are a number of potential impacts on library services:
You want the information,
whether from a magazine, newspaper article, book, dissertation, law review.
You want to know that your source follows proper copyright practice, including
having the appropriate person compensated. You want to find the information
quickly and efficiently in one of the services that you regularly use,
whether a commercial database or Web-based service.
It may be impossible
to publish the complete record of printed works online — especially retrospective
Libraries may incur
liability where electronic products are purchased, especially if only through
an invoice (rather than a formal contract) with no clearly defined indemnification
rights. Even with a contract libraries may still be at risk.
If aggregators or
publishers pull significant content from their services, libraries may
need to renegotiate contracts if content falls below certain acceptable
So where do you
go? Is there a safe harbor to get information, to acquire permission to
copy, and to insure safe usage by having the right person or entity compensated?
What should librarians
do? Where should we go to get permission to make copies now? Do we call
the publisher? The author? The Copyright Clearance Center (CCC)? If you
do not contact the authors directly, how do you know whether the publisher
or document delivery service or the CCC has the authority to collect the
copyright royalties you pay out? How can you know whether the author has
reserved all rights, or signed them over to the publisher, or the CCC,
or even the PRC (Publication Rights Clearinghouse)?
New services have
popped up to provide "instant" "easy" copyright permissions — right online.
They have names like ScreamingMedia, iPipe, iSyndicate, iCopyright, and
Copyright Direct — but how do you determine which has the permission rights
to the article you want to copy? [See the sidebar "Content
Permission Services" on page 57 for a complete list of these services.]
iCopyright is one
such handy service: When you use one of their participating newspaper's
archives, you will find a link at the end of each article offering an on-the-spot
license. There are options for reprinting the story or posting it on a
Web site for a fee12.
As Tim Bradbuy, executive vice president of Product and Business Development
for bizjournals.com states, "... with iCopyright's Instant Clearance Service
automating the online reuse permissions-request process, we are provided
with an effective way to add value to our customers while enabling us to
monetize our content."13
Elsewhere, iCopyright is described as "the global Internet marketplace
for content services, [it] automates the licensing and delivery of digital
content, providing content owners with new avenues to sell their content
and saving customers time and effort."14
One major caveat
before you run to the "instant permission" services: These services also
deal with the publishers, just like the databases, document delivery services,
etc. If your concerns involve getting permission from (or compensating)
the true rights holder, you may still have to begin with the author.
You can see the
problem. Just as the databases and aggregators, document delivery services,
and others cannot tell whether the author was a freelance writer or in
the employ of the publisher — much less what the contract terms relating
to electronic distribution were for the article — neither can the librarian!
So librarians have relied on the copyright compliance of their sources,
and those sources have relied on the assurances of the publishers. Hmmmmm.
There is also no
way to easily determine whether these "instant permission" services will
pay the freelance journalist, or just give more money to the publisher.
Remember, the articles appear on the publisher's Web site with links to
the permission service at the end of each article. Who do you think will
get the money? I just wonder whether these services will track the permissions-granted
(and money received) to the article level? If so, then if the Supreme Court
in Tasini requires it, the permissions service will have the records
to assure payments to the freelance authors — if they are the true rights
Many books and
at least one Web site18discuss
the problem of acquiring permissions. However, if you need the content
now, you don't want to research copyright law, and you don't want to have
to go nine places (online and by phone), in hopes of finding at least one
source for permission to make the copy.
Right now you have
few choices. You can go to UnCover [at http://www.ingenta.com]
for articles. UnCover has been paying the authors royalties through the
PRC since their previous owner, Knight Ridder Information, settled a lawsuit
with authors. You can go to the Publication Rights Clearinghouse. You can
go to Contentville, which has negotiated a similar arrangement with the
So What Are Commercial Databases
and Aggregators to Do?
Some feel that
companies should pull all content for which they do not have copyright
permission directly from the author. Others believe they should only contract
for content written under an agreement with a publisher that provides for
the publisher to retain the rights to the article (whether in electronic
or other future technologies), rather than the author/creator.
According to Jonathan
Tasini, head of the National Writers Union, they should all strike agreements
with the Publication Rights Clearinghouse. Tasini feels the fact that a
media company would rather drop articles than pay for them "shows the low
moral standard under which these companies are operating."
In the meantime,
the commercial databases and aggregators should devise article level accounting
systems to track actual use. This would aid the publishers in compensating
the appropriate authors. Database companies and aggregators should also
negotiate indemnification clauses (if they have not already done so) to
insure reimbursement for actual damages and attorney and court fees if
they are sued by authors because the publishers do not pass along royalties.
And What Are Publishers to
On November 6,
2000, the day that the Supreme Court agreed to hear the appeal of New York
Times v. Tasini (Docket No. 00-201), the National Writers Union issued
an "Open Letter to the Publishing Industry."19In
this letter the NWU stated:
We want to see
our work continue to be disseminated via the likes of LEXIS-NEXIS, America
Online, the World Wide Web, and other new media so you can make a profit
and we can make a fair living. For this reason, the NWU is offering to
negotiate with the publishing community to keep the networks humming. What
this requires is a system by which freelancers can license the necessary
electronic rights to publishers and get appropriate compensation both for
new articles and for material previously put online.
The licensing of
rights can be done easily. All you [the publishers] need to do is draw
up an agreement in which the freelancer licenses to you the particular
electronic rights you require. The PRC can facilitate that process. The
PRC was the first system to successfully process transaction-based royalties
through our contract with UnCover, a service of the CARL Corporation....The
ruling in the Tasini case does not have to create a crisis for periodical
publishers. We in the NWU believe that the system outlined above will make
it easy for the industry to come into compliance with the law and continue
to exploit the widening opportunities created by electronic publishing.
The NWU encouraged
the publishers further by citing the success of their "historic agreement
with Contentville.com. Under that agreement, Contentville will use the
PRC (and the sophisticated digital rights management system developed by
the Copyright Clearance Center, which is well-positioned to handle the
technical processing of thousands of daily transactions) to pay writers
and then have the legal right to use copyrighted articles. We encourage
you to visit our Web site to learn more about the Contentville deal or
contact the NWU or Contentville CEO, Steven Brill."
Threats and Worst-Case Scenarios
In the worst-case
scenario, if there is or was no contract for the article of a freelance
author, then those articles will have to be pulled from any database, Web
site, or electronic archive. This will compromise the integrity and completeness
of these databases, hurting researchers — among whom are many of the freelancers
According to one
writer, the future looks like either the Private Sector or Big Brother
will be forced to resolve the problem. "Either the private sector can be
trusted to decide these questions itself, with 'content creators' and 'access
providers' working together to develop new compensation formulas, or Big
Brother can step in and decide these questions by congressional or administrative
fiat. That is, Congress can set up a commission to examine the question
and make industry-by-industry recommendations. Or, it can delegate the
task of deriving formulas to a copyright arbitration royalty panel, much
like the panel that sets certain rates and fees for the music industry
when those involved can't arrive at them themselves. ... Once a new set
of compensation formulas is created, publishers and artists should explore
the use of 'tracing' technology to keep track of what works are viewed...to
ensure that the creators of intellectual content get compensated for their
Responding to my
request for their vision of a "worst-case scenario," the folks at Bell
& Howell envisioned disaster if the Tasini decision of the Court
of Appeals was affirmed by the Supreme Court:
Both of these results
would have a tremendous impact on both the library community and information
providers, not to mention information users and the historical record.
of data: While we estimate that the actual percentage of content we provide
truly affected by this ruling is very low (less than 2 percent), the actual
impact could be on a much larger scale — particularly for retrospective
materials. Since the records of print publishers may not be sufficient
to easily determine which articles were freelance-written and which were
not, publishers may find it easier to pull entire publications from aggregated
databases rather than presume that they obtained — either through contract
or implied license — all the necessary rights for electronic publication
of their publications. This could lead to the wholesale blocking of entire
runs of certain publications up to and possibly including current issues.
Because the amount
of royalties earned from the electronic publication of retrospective issues
is not enough to outweigh potential defense costs, publishers will likely
make a prudent business decision to remove whole issues.
significant (and little-discussed) result of the ruling could affect microform.
One major weekly publication has already begun to restrict articles accessible
in microform as a safeguard against further litigation.
That's a pretty dismal
view of the future.
Chaos in obtaining
rights and permissions, especially for older articles: The difficulty is
for publishers to filter out freelance-written content. There exists no
way to independently identify and verify freelance authors and their rights
in particular articles.
No work for freelance
writers: This is an issue to be resolved by authors and publishers.
In addition, costs
to libraries and users are likely to increase if rights and/or access must
be negotiated with individual authors.
The creation of any
"ASCAP-like" administrative system, as has been suggested by some, is not
viable for application to freelance-written articles. Such a system would
burden the distribution of electronic copyrighted data to the extent that
it will be cost-prohibitive to access the information. The distribution
of news and information is complex, and the administrative engine required
to track it accurately would be costly and burdensome.
must still write. Publishers still need their articles. The publishers
will, more and more, insist on contracts that provide for transfer of ownership
of all copyright rights — in all known formats (and those discovered in
the future). However, since the authors give up more rights under these
contracts, they should contract for increased compensation. After all,
the potential for the publishers to reap income from those future rights
to electronic, digital, archival microform, and other formats will potentially
never end. Indeed, the ability to proclaim a complete database of all issues,
with cover-to-cover content, could make the publisher's product even more
popular and profitable. Perhaps publishers will even make an effort to
contact prior freelance contributors to their publications with an offer
to "purchase" the current and future rights to the older articles — just
to maintain a complete archive. Considering the profits from copyright
fees to which they were not entitled, but were nonetheless paid, a flat
fee per article could be determined to be the "going rate" for articles
to which the authors never gave up their rights. Or, publishers could take
those copyright fees and drop them at the door of the Publication Rights
Clearinghouse (or some other author's group willing to take the project
on) and let them divvy it up. On the other hand, if the publishers win
the appeal, then everyone — but the freelancers — can relax.
How will this all
pan out? The Supreme Court's opinion in New York Times v. Tasini,
when issued, will provide the final guidance. Until then, information professionals
should continue to act in good faith, do their best to get permissions
for copies (or Web postings, etc.) from the true rights holder, and hope
that sensible minds prevail to settle the disruption in the information
industry that exists today.
Ebbingouse's e-mail address is email@example.com
Organizations and Registries
Rights Clearinghouse (National Writer's Union)
negotiated with, sued, and settled for compensation systems for authors.
Registering articles with the PRC costs $20 for members of the NWU and
associate sponsor organizations; $40 for everyone else. You do not have
to be a member of the NWU to join.
charges $13 per faxed article ($10 for the article and $3 for the copyright
Uncover sets aside
30 percent of the fee ($3) to PRC PRC takes an administrative cut of 20
percent ($0.60). PRC sends author $2.40 (80 percent) per article faxed
to a customer.
Authors who retained
copyright in an article delivered by UnCover between October 22, 1994,
and July 12, 2000, could file a claim before October 27, 2000, at http://www.uncoversettlement.com
for their share of $7.25 million in royalties (paid by the previous owners
Knight Ridder and Dialog). There is no cost to file a claim. For more information
Writers who register
the copyright for their work through the PRC will receive 30 percent of
the fees paid by Contentville.com customers. The archived articles on Contentville
(provided by EBSCO) sell for $2.95.
Copyright Clearance Center:
Writers can collect
royalties each and every time a licensed user photocopies their work. CCC
charges an administrative fee of 9-15 percent, depending upon the program
(transactional, academic, or foreign authorizations, etc.). Writers need
to register with the CCC to participate
has signed an agreement with the National Writers Union so that authors
of books "can sell both primary and subsidiary rights. Primary rights are
the rights to initially publish your book. Subsidiary rights are publication
and related rights that are in addition to the right to initially
publish a book. These rights can include foreign language rights, television
and movie rights, audio book rights, electronic rights, etc. Rightsworld.com
provides an easy, safe, and inexpensive way for you to sell your rights."1
was created by the Author's Guild. It is a nonprofit organization which
recognized that a "central payment service makes economic sense for certain
types of rights (electronic database rights, photocopy rights, perhaps
multimedia rights) where a publisher makes relatively small payments to
large numbers of authors. Our aim is to encourage publishers to pay properly
for these rights by providing an efficient method of payment." The cost
to register is only $10. Since its inception in 1996, the Author's Registry
claims to have distributed over $1,000,000 to authors.
Other Writers Organizations
Society of Journalists and Authors: "The nation's leading organization
of independent nonfiction writers." The ASJA maintains a free newsletter,
Watch, at http://www.asja.org/cwpage.htm,
which provides helpful information and answers to member questions on publication
contracts. There is even a searchable archive.
Writers Union. The same people who brought the Tasini lawsuit,
created the Publication Rights Clearinghouse, and negotiated contracts
with Contentville, CCC, and others. Visit http://www.nwu.org
to learn more about this aggressive advocate for writers.
Writers Association of Canada (PWAC) provides a number of benefits,
links, publications, listserv, and advice for freelance writers. Go to
Canadian equivalent to America's Copyright Clearance Center. Check its
Web site at http://www.CANCOPY.com.
For an extensive
(if not comprehensive) list of other writer organizations, see http://www.nwu.org/links/lnkorgs.htm
What Must an
Author Do to Get Compensated?
must join one or more of the organizations that purport to pass the royalty
payments on to the authors (less a handling fee, of course). [For a list
of author associations, rights clearinghouses, and registries, see the
sidebar "Author Organizations and Registries" on
will provide support and news about current contract issues, lawsuits,
etc. The organizations will keep authors apprised of such things as the
UnCover settlement — the terms of which dictate that freelance authors
had until October 27, 2000, to file a claim.15
also track the current contracting tactics of various publishers, as do
publisher's press sources that offer electronic newsletters, magazines,
and current awareness services through e-mail.16
[See the list in the "Information Industry Organizations"
sidebar on page 56.]
a contract that covers resales must ask for a fair price. If the sale of
the article includes selling the future rights to online income from databases,
aggregators, CD-ROM, and other electronic media, how much is that worth?
"Suppose a publisher has paid $2 per word for print publication of an article.
Should that amount now be doubled? Tripled? Multiplied 10- or a hundred-fold,
since the piece may remain online for decades? And what about book authors
who have typically received royalties equivalent to 15 percent of net receipts
from sales. Now should they also get 15 percent or more of revenues earned
by e-book publishers?"17
Authors are encouraged
to join their respective organizations, register their works, and keep
abreast of the rapid flow of information on contracting, the results of
lawsuits and settlements, and other news affecting their livelihoods.
of American Publishers
Internet Caucus Advisory Committee
of America (filed amicus brief in Tasini)
Information Industry Association
aggregates digital content — news, features, photos, video, stock quotes,
audio, weather reports, and more — then filters, delivers, and integrates
this content in real time into our clients' Web sites, intranets, extranets,
and wireless networks. ScreamingMedia's global Digital Content Network
consists of over 2,800 publications, supplying content to more than 1,100
more than 125 content properties that have been distributed to the most
desirable sites on the Web. iPipe is an anchor tenant on the AOL News Channel,
as well as a content provider for AOL Service, Netscape Netcenter, and
the preeminent content syndication service on the Internet, distributing
a broad selection of written, graphical, audio, and video content from
1,192 sources, to a vast and diverse network of 289,356 Web sites.
Vending and Permission in Real Time. Copyright Direct enables rights holders
to manage pre-authorized and customized permissions in real time using
a standard WWW browser.
Instant Clearance Service offers online publishers the ability to make
their content available for instant licensing and delivery.
rights organization has negotiated with the National Writers Union for
authors to be able to sell the rights to their books online. Authors should
go to http://www.nwu.org/book/rightsw.htm
for instructions and fees.
with the NWU and its Publication Rights Clearinghouse to give authors 30
percent of the download fee (always more than the publishers' cut) each
time an article is purchased (even retroactively for articles already in
the database). The service is nonexclusive in case the author has sold
electronic rights to an article elsewhere. Authors should go to http://www.nwu.org/prc/cv1.htm
for directions. If an author does not want to receive a fee through the
Publication Rights Clearinghouse, they can request the work's removal from
the Contentville site.
The names of all
parties in the case are as follows: Jonathan Tasini, Mary Kay Blakely,
Barbara Garson, Margot Mifflin, Sonia Jaffe Robbins, and David S. Whitford,
plaintiffs, against The New York Times Co., Newsday Inc., Time Inc., The
Atlantic Monthly Co., Mead Data Central Corp., and University Microfilms
The various opinions
already issued in the litigation:
Tasini v. New
York Times Co., 972 F. Supp. 804, Copy. L. Rep. (CCH) P27672, 25 Media
L. Rep. (BNA) 2057, 43 U.S.P.Q.2d (BNA), 1801 (S.D.N.Y. 1997).
denied by Tasini v. New York Times Co., 981 F. Supp. 841 (S.D.N.Y.
Reversed by, Remanded
by: Tasini v. New York Times Co., 192 F.3d 356, 27 Media L. Rep.
(BNA) 2281, 52 U.S.P.Q.2d (BNA) 1186 (2d Cir. N.Y. 1999). Withdrawn by
Reported at: Tasini
v. New York Times Co., 206 F.3d 161, 1999 U.S. App. LEXIS 36241, 28
Media L. Rep. (BNA) 1748, 54 U.S.P.Q.2d (BNA) 1032 (2d Cir. N.Y. 1999).
Writ of certiorari
granted by a unanimous court: New York Times Co. v. Tasini, 2000
WL 1201912, 2000 U.S. LEXIS 7321, 69 U.S.L.W. 3316, 2000 D.A.R. 11808 (U.S.
Nov. 6, 2000).
The Supreme Court
also decided to grant Northern Light Technology, Inc. leave to file an
amicus curiae brief.
Plaintiffs' and appellants' names always come first in federal courts,
so since Tasini lost in the trial court, his name was first in the Circuit
Court of Appeal. The original defendants appealed to the Supreme Court,
so The New York Times is named first now.
Party name: The
New York Times Company, Inc., et al.
Emily M. Bass
Party name: Barbara
Garson and Sonia Jaffe Robbins
Patricia A. Felch
Party name: Jonathan
Tasini, Mary Kay Blakely, M. Mifflin & D. Whitford
Charles S. Sims
Party name: Advance
Publications, Inc., et al.
Michael F. Clayton
Party name: Ken
Burns, et al.
Bernard J. Bonn
Party name: Northern
light Technology, Inc.
1. See the announcement
for authors to find out more about Rightsworld.com and what to do to get
started, the costs, etc.
2. See Jess Bravin,
"Free-Lance Writers Sue Web Publishers, Demanding to Be Paid Back Royalties,"
Wall Street Interactive Edition (August 15, 2000).
3. See Steve Outing,
"Stop the Presses! Writers vs. Newspaper in San Diego" Editor & Publisher
Online (August 23, 2000) about the San Diego Union Tribune's troubles
After pointing out that the "30 writers who are gearing up to fight the
this issue did their research and found about 4,500 freelance articles
in the paper's Web site archive, of which 3,000 were written by the group
of 30. Many of their articles written for the U-T also appear on
LEXIS-NEXIS, and some have been spotted on sites like Contentville and
Northern Light. (Newspapers like the U-T typically license their
content directly to LEXIS-NEXIS, and sell content to other article databases,
which subsequently relicense to companies like Contentville and Northern
Light.) The writers 'are really angry' that the newspaper is making money
and will make money from their work without sharing it, says Golden. Even
though the paper's Web archive is free to users, the archive pages do sport
banner ads — and thus the company is making money from the ad impressions
that the freelance articles in the archive generate...'"
4. To see one hotly
contested contract proposed by the San Diego Union Tribune, go to http://www.editorandpublisher.com/ephome/news/newshtm/stop/st082300.htm
and "click" on the reference.
5. Steve Outing,
"More on the E-Rights Issue," Editor and Publisher, "Stop the Presses"
(August 30, 2000) at http://www.editorandpublisher.com/ephome/news/newshtm/stop/st082300.htm.
7. "Bell &
Howell Information and Learning Responds to Copyright Complaints," October
5, 2000. "All materials that we publish in microform and electronically
(whether online, on tape, or on CD-ROM) are published under a valid copyright
license with publishers. These license agreements contain representations
from publishers that they can grant the necessary rights to the materials.
The current issues raised regarding electronic publishing rights is a matter
for publishers and authors to discuss and resolve in a way that meets both
groups' needs. As an information aggregator, we eagerly await resolution."
8. The case of
v. New York Times, 206 F.3d 161 (2d Cir. 2000) and see http://www.tourolaw.edu/2ndcircuit/September99/97-9181.html.
The Supreme Court granted review in the case, now named New York Times
Co. v. Tasini, Docket No. 00-201. See http://www.supremecourtus.gov/docket/00-201.htm.
The docket number is 00-201. For background on the case (beyond several
previous articles in Searcher magazine, see http://www.nytimes.com/2000/11/06/national/06CND-LANCE.html
9. See "U.S. News
Pulls Microform Content: Amid Copyright Concerns, news magazine pulls info
it may not own" Library Journal, vol. 125, October 1, 2000, p. 14+.
10. See Judy Stoffman,
"Virtual Book Store Selling 'Used' Articles," Toronto Starr (August
3, 2000). The article describes Contentville's woes, among which is that
"approximately 100 Canadian writers... have complained to the Periodical
Writers Association [about finding their work was being sold without offering
11. "Ryan vs. Carl
copyright suit settled but Spawns Additional Litigation" Online Libraries
and Microcomputers (September 1, 2000).
12. See "bits &
bytes," Knoxville News-Sentinel, (September 14, 2000), p. C1. The
paper's director of online media, "Jack Lail said he doesn't expect the
service to stop people from printing out copies of the story or sending
it to friends. But it will be a more efficient method for copyright-conscious
organizations, such as corporations and universities, to receive permission
to reuse a story."
13. See Paula J.
Hane, "iCopyright Provides Online Content-Clearance Service to bizjournals.com,"
Today (September 1, 2000), p. 41.
14. "Indiana Star
News Now Licensing Content Through iCopyright; Visitors to Starnews.com
Can Purchase Distribution and Reprint Rights Online" Business Wire (August
15. For more information
16. Jason Williams,
"Who Owns History?" Editor and Publisher, vol. 132, (Dec 11, 1999),
p. 26+. For example, "The Cox-owned Atlanta Journal and Constitution deals
with free-lancers like most newspapers today. Their free lance contracts
specifically state that 'Cox Newspapers will have first right to publish
the work in our printed newspapers. While the contributor retains original
copyright and ownership, we will retain the right to the published work
for inclusion in other Cox Newspapers compilations. Our rights specifically
include the rights to distribute the work through our Internet services
[and] in our electronic databases, and to republish it as part of any reprint,
electronic or otherwise.'"
17. "A Writer's
Electronic Rights; Tasini Decision Redraws Playing Field for Free-Lancers,
Publishers," Fulton County Daily Report (December 21, 1999).
18. See, among
many, Richard Stim, "Getting Permission: How to License and Clear Copyrighted
materials Online and Off (2000) and on the Internet, see "Getting Permission
to Publish: Ten Tips for Webmasters" at http://www.nolo.com/encyclopedia/articles/pct/pub_permission.html.
19. See http://www.nwu.org/tvt/0011letr.htm.
20. "A Writer's
Electronic Rights; Tasini Decision Redraws Playing Field for Free-Lancers,
Publishers" Fulton Country Daily Report (December 21, 1999).