August 14, 1997

Free-Lancers Lose Test Case on Electronic Publishing

By STEVE LOHR

EW YORK -- A federal judge ruled Wednesday that publishers can reproduce articles by free-lance writers in some electronic media without their permission or paying them extra.

The ruling came in a lawsuit, filed in 1993 by a group of writers, that was widely viewed as an early test of the economic rights of free-lancers and copyright law in the new realm of electronic publishing. The plaintiffs challenged the right of six publishers, including The New York Times Co. and Time Warner Inc., to reproduce newspaper or magazine articles on CD-ROMs or in electronic data bases -- without seeking the permission of the free-lance writers and without paying them beyond what they were paid for the original articles.

An important issue, under the Copyright Act of 1976, is whether the reproduction is the same as the original publication or amounts to a slightly revised version of the original. If either is the case, the publishers have reproduction rights. That, for example, is the copyright interpretation that permits publishers to put archive versions of newspapers and magazines on microfilm.

Judge Sonia Sotomayor of the U.S. District Court in Manhattan ruled that for CD-ROMs and certain electronic data bases, publishers can reproduce without permission. But since the suit was filed, the biggest arena of electronic publishing has become the World Wide Web. In their Web versions, newspapers and magazines often include articles and pictures not found in their original publications and sometimes even video and audio.

Given the rise of the Internet and the increasing importance of electronic publishing, representatives for both the defendants and the plaintiffs predicted that the court ruling Wednesday would not be the end of the conflict between publishers and free-lancers.

"The judge ruled that CD-ROMs and some kinds of data bases are the functional equivalent of microfilm," said Bruce Keller, a partner at Debevoise & Plimpton, the law firm representing the defendants. "But it is not a sweeping decision that determines copyright in all forms of electronic media."

The lead plaintiff, Jonathan Tasini, the president of the National Writers Union, termed the judge's decision "murky, wrong and somewhat contradictory." But he noted that in her ruling, the judge acknowledged that copyright law might not have kept pace with today's technology and its implications.

"The court does not take lightly that its holding deprives plaintiffs of certain important economic benefits associated with their creations," Judge Sotomayor wrote.

But, she added, "the plaintiffs' real complaint lies in the fact that modern technology has created a situation in which revision rights are much more valuable than intended at the time that the specific terms of the Copyright Act were being negotiated."

Congress, she noted "is of course free to revise that provision to achieve a more equitable result."

Tasini said he was considering an appeal of the ruling. In addition, he said the writers union, an affiliate of the United Automobile Workers, had been talking to members of Congress about trying to bring copyright law into the Internet era.

"The judge is essentially saying, 'Don't beef to me -- take it to Congress,' " Tasini said.

In the last couple of years, publishers have also moved to strengthen their control of copyright in cyberspace. Beginning in 1995, most major newspaper and magazine publishers began requiring free-lancers to sign so-called all-rights contracts, giving the publishers reproduction rights for all forms of electronic media, including Web sites.

"Even if we won the case today," Tasini said, "we would still be fighting these all-rights contracts."

Besides The New York Times Co. and Time Warner, the defendants in the case were Newsday, which is owned by Times Mirror Co.; Mead Data, a unit of the Dutch-British conglomerate Reed Elsevier PLC, which runs Nexis, a data service that provides the archives of many news organizations via computer; and University Microfilms, a division of Bell & Howell that for many years has provided the archives of The New York Times and many other newspapers on microfilm.