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 resales 

Traditionally, 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
Freelance writers 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 like microfilm.

Freelance authors 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).
 

The Publishers
Publishers generally 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 entitled.

One publisher, 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. 

Finally, publishers 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 Aggregators
Commercial databases 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 25.'" 

Bell & Howell made this point in a private communication with the author: 

Taken together, 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.
 

The Essence
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 a Knife
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. 

Aggregators claim they have already compensated the publishers for copyright permissions, so the authors should go after the publishers, not them. 

Publishers claim 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 already are.

Full-text digital content is not the only endangered species; other formats are also threatened. U.S. 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 Library 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

Another magazine 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 copyright rights. 

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, among them). 
 

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 author,¹¹ there are a number of potential impacts on library services:

• It may be impossible to publish the complete record of printed works online — especially retrospective materials

 
• 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 thresholds.

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 holders.

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 PRC. 
 

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 Do?
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 themselves.

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 work."²⁰

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: 

• Wholesale "blocking" 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.

 
• Another extremely 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.

• 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.

Conclusion
Freelance writers 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.