Continuing Disputes Between Writers and Journal Publishers
Over the past couple of years two important cases have considered the issue of whether freelance writers are entitled to additional royalties when periodical publishers make their magazines and journals available in electronic format or when a document delivery service photocopies articles for customers. The two cases are important to both libraries and document delivery services generally.
Freelance writers began to raise concerns soon after general magazines such as Time and Newsweek created online versions. These writers had transferred the copyright for their articles to the publisher, but there was no mention of electronic versions. Indeed, such versions were not even envisioned at the time many of these copyright transfers occurred. Freelance writers viewed such electronic versions as redistributions of their articles for which the copyright transfer was either invalid or simply absent because the technology did not exist before. So, in Tasini v. New York Times Co., [972 F. Supp. 804 (S.D.N.Y. 1997)], writers sued several publishers and database compilers for licensing royalties when their articles were included in a database. Section 201(c) of the Copyright Act is the critical statute. It states that copyright in each separate contribution to a collective work is separate from the copyright in the collective work and vests with the author. The assumption is that the publisher obtained only the rights to include the article in a particular collective work, i.e., the journal issue.
Many experts believed that the writers would prevail in Tasini, but the court decided otherwise. In an unusual interpretation of the statute, the court held that electronic format was a permissible revision under Section 201(c) because the databases merely converted the journal issues to electronic format and maintained the original selection of articles. In other words, the publishers and database compilers are allowed to create databases without seeking further permission or paying royalties to writers. So, the court treated the creation of electronic versions of journals as if it were a revision of the collective work rather than a new work. The court also stressed the need to encourage the development of electronic formats and to encourage publishers to make their works available digitally. It seemed to find the need to further the development of journals in electronic format somewhat persuasive, in fact.
Then in 1998, in Ryan v. Carl Corporation, 23 F. Supp.2d 1146 (N.D. Cal. 1998), a different federal district court found that UnCover, the document delivery business run by Carl and Dialog Corporation, infringed the authors' copyright when it made copies of articles from scholarly journals and magazines and supplied photocopies to clients who requested individual articles. Copyright royalties were paid to the publisher, but not to individual authors. UnCover retained a photocopy of the article and reused it to make further reproductions if there were additional requests for copies of that article.
Unlike the full-text databases at issue in Tasini, the UnCover database consists of bibliographic information on about eight million articles from 17,000 journal titles. Although authors had transferred their copyrights to the publishers, they claimed a violation of their rights in the reproduction of individual articles from journal issues unlike in Tasini where the entire issue was available electronically. Defendants, relying on Tasini, argued the photocopies it provided were permissible revisions under Section 201(c), but the court disagreed. The court granted summary adjudication holding that publishers of collective works do not have the right to reproduce individual contributions to that work. As the court pointed out, Section 201(c) was added to the copyright law to expand the rights of authors, not the rights of publishers.
This was only a preliminary stage of the case. In January, 1999 the Ryan class was certified as a class action, so the full case will now proceed on the merits. Writers groups believe they will be successful.
Writers hail the Ryan decision as leading to an eventual reversal of Tasini. One can argue, however, and publishers and database producers have done so, that Ryan is likely to have little overall impact on them since they do not engage in the photocopying of individual articles. The impact on document delivery services could be significant, at least for articles published before the date of the decision. Document delivery services should, according to Ryan, pay royalties for photocopied articles directly to individual authors.
Publishers are likely to make sure transfers of copyright in the future include the right to photocopy individual articles. Described as "all rights" contracts, publishers may well be successful in getting writers to sign away all rights in exchange for the publication of their works and an initial payment. Others may refuse.

For more information, contact Laura Gasaway laura_gasaway@unc.edu.