Net gain for freelancers
Databases aren't same as print archives, High Court rules
By a 7-2 margin, the country's highest court concluded that Internet databases aren't the same as print archives, and that freelance writers must be given their fair due, i.e., additional fees. Otherwise, publishers are in copyright violation. The high court, however, left the tough task of figuring out exact financial arrangements to several lower courts.
Opinion was a resounding boost for the National Writers Union (UAW Local 1981), which brought the landmark case in 1993. Union immediately called on publishers to hammer out payment arrangements.
"The New York Times and other publishers face billions of dollars of potential liability for selling articles to which they hold no copyright. The way to settle these obligations is to meet at the bargaining table, so we can find solutions that are fair to writers, to the industry and for consumers," International Writers Union (UAW) veep Elizabeth Bunn said.
But losers in the case -- which include The New York Times -- said the court decision will result in huge, gaping holes for historians, scholars and the average citizen relying on electronic databases.
Publishers say that as a result of Monday's ruling they will begin purging thousands of freelance articles written since 1980.
The future isn't as problematic, since many publishers have already begun addressing electronic rights in freelance contracts.
"Unfortunately, today's decision means that everyone loses," New York Times publisher Arthur Sulzberger, Jr. said.
"The Times has lost this case and will now undertake the difficult and sad process of removing significant portions from its electronic, historical archive. That is a loss for freelance writers because their articles will be removed from the historical record. Historians, scholars and the public lose because of the holes in history created by the removal of these articles from electronic issues of newspapers such as The Times," Sulzberger said.
Traditionally, publications using freelancers haven't had to take extra measures before turning over articles to archives, the thinking being that these records serve the public good when it comes to research and preservation of history.
But print archives shouldn't be confused with the Internet and CD-ROMs, the justices said in ruling against The New York Times, Newsday, Time Magazine, University Microfilms International and Lexis/Nexis, which is a division of Variety parent company Reed Elsevier .
"Both the print publishers and the electronic publishers, we rule, have infringed the copyrights of the free-lance articles," Justice Ruth Bader Ginsburg wrote.
Monday's Supreme Court opinion upheld a September 1999 appeals court ruling.
"The Court has upheld the spirit of the Constitutional protection for copyright, which was written for the benefit of individual authors," lead plaintiff and National Writers Union prexy John Tasini said. "Now, it's time for the media industry to pay creators their fair share, and let's sit down and negotiate over this today."
Tasini said his org wants to work with publishers to settlepast claims in a reasonable fashion, and establish a mechanism by which freelancers can be fairly compensated in the future. In 1993, the National Writers Union set up the Publication Rights Clearinghouse (PRC), which allows writers and publishers to track the ownership of copyright and payment for authorized re-sale of copyrighted works, Tasini said. Freelance writers, whether or not they are NWU members, can use the PRC to license their works.
But The New York Times and other publishers insist freelance writers were adequately and justly compensated in the first place, and that there is little to negotiate in regards to stories already posted on electronic databases. Hence, the only option is to begin the purging process.
Time Magazine will also begin the complex task of deleting stories from electronic databases, spokesman Peter Costiglio said.
"We are extremely disappointed with the decision," Costiglio said.
Time Magazine, like the New York Times, began addressing electronic rights in freelance contracts several years ago, Costiglio said.
The New York Times estimated that the paper posted 117,000 articles written by 27,000 freelancers on electronic databases between 1980 and 1995, spokesman Peter Usnik said. In 1995, the newspaper began incorporating language for database use into its freelance agreements.
Within hours of the Supreme Court decision, The New York Times put hotline information on its Web site for freelance authors who don't want their articles purged.
"We recognize that many journalists want to be in the archives, but we can't risk being found to have willfully infringed on the copyright laws," Usnik said.
