Freelancers’ Copyright Case Divides Scholars

Copyright law says that the creator of a work retains ownership of it even after a media outlet pays for and publishes it. For decades, the common practice has been that, absent an explicit alternative arrangement, freelance writers selling works to American publications are understood to sell "first North American serial rights," which allow the publisher to publish the work one time. Unless the creator signs a contract specifying otherwise, he or she can republish the work elsewhere. A proportion of freelance writers’ income often comes from such resales in which, for example, a work may be syndicated, translated, or included in an anthology or textbook.

Publishers, however, retain the legal right to reprint articles at no additional cost in revised editions of their newspapers or magazines. For years, they have reproduced freelance articles along with their other articles in media such as microfilm or microfiche without paying additional fees to freelancers. The explosion of online databases and CD-ROMs in the 1990s complicated traditional practices, and the Tasini case hinges on whether such electronic media are essentially revised versions of the original publication, akin to a microfilm edition of a newspaper, or essentially new publications.

Before reaching the Supreme Court, the case, which was initiated by Tasini and other freelance writers in 1993, drew contradictory rulings from lower courts. In 1997 the federal district court in New York ruled in favor of the New York Times and other publishers named in the case, saying that online archives are revised editions. In 1999 a federal appellate court overturned that decision, ruling that a database containing millions of articles cannot be considered a revised edition of a publication.

Some scholars worry that a ruling in favor of freelance writers could result in the destruction of scholarly resources. Publishers will be forced to engage in "defensive deletions" of materials already in databases if they lose the case and are faced with the prospect of tracking down and paying freelancers, according to Laurence Tribe, professor of law at Harvard University and an attorney for the publishers. David M. Kennedy, a history professor at Stanford University who signed a friend-of-the-court brief in support of the publishers, shares Tribe’s concerns. "The interests of the freelance authors are not trivial, but on balance the integrity of the historical record is a more important value," he says.

In reply to that argument, the NWU points to its Publication Rights Clearinghouse, which licenses secondary rights to previously published works. When the clearinghouse signs an agreement with a publisher, it collects a copyright fee, which it distributes, along with any royalties earned, to the enrolled writers.

On the plaintiff’s side, librarians’ associations and other scholars have argued that commercial publishers of electronic databases overstate both their role as the nation’s electronic archives and the extent to which the physical library has been replaced by the electronic archive. The American Library Association and the Association of Research Libraries suggest in the brief they filed in the case that database publishers themselves create obstacles to scholarship through licensing practices designed to limit access to digital copies of works. "These restrictions perpetuate a system of payment [to publishers] . . . often to the detriment of legitimate fair use and archival concerns," the brief states.

"Tasini is important to professors," says Stanley Katz, professor of history at Princeton University and signatory to a brief in favor of the freelancers. (Ellen Schrecker, Academe’s editor, also signed onto this brief in her individual capacity as a historian.) "The larger problem the case points to," Katz says, "is the threat that corporate interests pose to the retention of authorial rights in the digital context. If we do not all want to find ourselves producing ‘works for hire,’ compensated by our ordinary salaries, we need to rethink and reargue our authorial control in the digital world."

Some observers are less sure of the case’s centrality to scholars. "Whatever the Court decides, publishers and authors will negotiate their agreements accordingly. I don’t think the fate of either scholarship or scholarly publishing is hanging in the balance," says Peter Givler, executive director of the Association of American University Presses.

Editor’s note: As this issue of Academe went to press, the Supreme Court ruled seven to two in favor of Tasini.

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