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Eric Swetsky's legal column published in Marketing Magazine, September 2001
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Copyright and the Court
A landmark U.S. case giving freelancers more control over their creations has possible Canadian implications
A legal decision that was recently handed down by the United States Supreme Court is bound to enhance the copyright rights of freelance authors and, by implication, freelance artists as a whole. Here are the facts.
Six freelance authors had contributed articles over the years to periodicals such as The New York Times and Sports Illustrated. Without the consent of the freelancers, the periodicals authorized the republication of their articles into databases such as LEXIS/NEXIS.
Subscribers to those databases search for articles by author, subject, date, or similar criteria. The database search engines then select articles that meet the search criteria. Each article appears as a separate, isolated story, without any visible link to the original publication. The databases do not contain the periodicals' pictures or advertisements, or the publications' formatting features such as headline size, location of continuation pages or page placement (e.g., above or below the fold for newspapers).
The freelance authors alleged that their copyrights had been infringed by the inclusion of their articles in the databases. Under copyright law (in both Canada and the United States), a magazine, a newspaper or any similar periodical is known as a "collective work." In both Canada and the United States, copyright in each separate contribution to a collective work is distinct from the copyright in the collective work as a whole, and vests initially in the article's author. In the absence of a transfer of the copyright in an article published in a collective work, the periodical is presumed to have acquired only the privilege of reproducing the contribution as part of that particular collective work.
Defences to an allegation of copyright infringement differ in the United States from those available under the Canadian Copyright Act. Many of the legal arguments raised by the periodicals would not apply in Canada and the decision of the US Supreme Court in this case as a strict legal precedent is therefore of limited weight in our country. Nonetheless, the rights of Canadian freelancers in similar circumstances is of equal concern here, and the fallout from the US Supreme Court's decision could well result in a new approach to the rights of freelancers in the US that could spill over into Canada by pure and simple default.
The publishers argued, among other things, that the transfer of a work between media does not alter the character of that work for copyright purposes (what is referred to as the concept of "media neutrality"). While the US Supreme Court agreed in principle with that argument, the Court went on to say:
"unlike the conversion of newsprint to microfilm, the transfer of articles to the databases does not represent a mere conversion of intact periodicals…from one medium to another. The databases offer users individual articles, not intact periodicals. In this case, media neutrality should protect the authors' rights in the individual articles to the extent those articles are now presented individually, outside the collective work context, within the databases' new media."
The publishers then argued that a ruling for the authors would "punch gaping holes in the electronic record of history" because authors could prevent a previously published article from being reprinted. The US Supreme Court gave short shrift to that suggestion:
"it hardly follows…that an injunction against the inclusion of these articles in the databases, much less all freelance articles in any databases, must (be the actual outcome of our decision). …if necessary, the courts…may draw on numerous models for distributing copyrighted works and remunerating authors for their distribution, (such as those that exist with compulsory) music licensing regimes."
The important legal finding from this case for our purposes is virtually the same legal finding that the US Court of Appeals arrived at in the National Geographic case, that also dealt with freelancers' copyright issues. New mediums may well represent new products. If they are ones that were not known when the freelance author and the publisher initially agreed to the publication of that author's work in the original medium, publishers should not automatically assume that they have the right to reuse the work in the new medium without the author's consent.
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