FC: Writers' electronic rights and Tasini v. NYTimes judgment

[Declan McCullagh <declan () well com>]

[I was camping in the Grand Tetons, not Yellowstone, about 50 miles
southwest. --DBM]

******

Date: Thu, 7 Oct 1999 19:15:11 -0700
To: declan () well com
From: hedlund () forests com (Patric Hedlund)
Subject: NWU TASINI V. NYTIMES JUDGEMENT

Hi Declan,
While you were swatting mosquitos in the outback of Yellowstone (?)
the ruling about independent writer's electronic rights was reversed on
appeal in favor of writers.  I see this as part of a much larger picture
for all online content creators. I sent you a summary of that info. It is
an important intellectual property issue core to the convergence of
formerly discrete media, and could have positive reverbs in many sectors of
contract law related to the internet IF writers exercise their rights under
this victory.

I would think that the CATO circuit would realize this is an important
ruling for independent business people who happen to make their livings
creating content for the net.

Please circulate info about the ruling to this list.

Patric Hedlund,
Computers, Freedom & Privacy Video Library Project

[PREVIOUS TRANSMISSION ATTACHED]

You may have noticed that the legal battle waged by independent writers to
maintain our right to be paid for republication of our print stories in
electronic form has finally been resolved.  The National Writer's Union
suit "Tasini v The New York Times" appeal victory is an important event,
which confirms that Web rights are separate from print rights and must be
licensed separately.

The National Writers' Union is sending out an appeal for writers to USE
this opportunity, because most certainly if we don't use it, we WILL lose
it.

NWU worked on this case for 5 years.  The issues are explained below.
Perhaps it is still early enough within this new online economy for
creators of content to assert our right to be remunerated for the ongoing
use of our work. Yes, we may be underdogs vs consolidated corporate
media...but we are still business people, and our talent and creativity is
the capital which we are investing.  Return on that investment is what pays
the mortgage and helps pay our kids' tuition.  We have a responsibilty to
manage it well.

If you have been confronted with agreements such as the L.A.Times' standard
contract, which seeks to strip  freelancers' right to payment for
republication online, you will recognize that if we agree to "go along to
get along" we can quickly nullify the impact of this important ruling.

Whether you choose to join NWU or not, you might want to consider using its
standard freelancers contract in your business dealings with editors.  I'll
be happy to fax a copy to any of you who request it (be sure to include yr
fax # with your reply).

I also urge those of you who are currently in corporate staff positions to
consider how this issue affects your personal options should you become an
independent tomorrow.

I hope you'll find this information useful, and I invite your comments.



> TASINI V. THE NEW YORK TIMES RULING - WHAT DOES IT MEAN FOR WRITERS?
>
> On September 24, 1999, the Second Circuit Court of Appeals reversed a
> federal district court decision against the plaintiffs in Tasini et al. v.
> New York Times et al. The appeals court ruled that the reuse of freelance
> work on databases and CD-ROMs without the authors' express permission
> constitutes copyright infringement. This is a major victory for all
> independent creators.
>
> The purpose of this document is to explain the ruling and to suggest what
> writers should do next both collectively and in our individual contract
> negotiations.
>
> WHAT THE DECISION SAYS:
>
> Q. In a nutshell, what did the ruling say?
> A. The judges ruled that, even when there is no contract relating to
> electronic rights, a print publisher may not put the writings of
> freelancers on databases (such as Nexis) and CD-ROMs that include the
> entire textual content of the print publication.
>
> Q. Does this mean that freelancers automatically retain electronic rights
> to their printed work?
> A. Yes, under the Copyright Act of 1976, the writer, in the absence of a
> written contract, transfers only First North American Serial Rights and
> retains all other rights. The right to electronically reproduce freelance
> articles is not included in the transfer of First North American Serial
> Rights. The judges also affirmed the lower court's ruling on publishers'
> efforts to acquire rights by stamping a statement on the back of checks.
> Writers do not transfer rights to an article by simply endorsing such a
check.
> Q. Why did the district court rule in favor of the publishers?
> A. Judge Sotomayor based her conclusion on an interpretation of Section
> 201(c) of the Copyright Act of 1976, which deals with the copyright in
> "collective works." She focused on the language in Section 201(c) that
> gives the holder of the copyright in the collective work the limited
> privilege of reproducing and distributing revisions of the compilation. The
> judge came to the bizarre conclusion that certain kinds of electronic
> databases amount to nothing more than a "revision." As the appeals court
> pointed out, reading "revision" that broadly causes "the exception to
> swallow the rule."
>
> Q. How do my individual electronic rights in an article relate to the
> publisher's collective electronic rights in all of the articles it has
> published?
> A. If you have not expressly transferred to the publisher the right to
> reproduce your work electronically, the publisher cannot legally license
> your articles to databases. The publisher only has the right to license
> database rights to articles that were written by employees and articles
> written under contracts that transfer electronic rights.
>
> Q. What about other kinds of electronic rights?
> A. This decision reaffirms the NWU's position on websites. Publishers do
> not automatically have the right to put your work on their own website. Web
> rights are separate from print rights and must be licensed separately. See
> the NWU Web-rights Policy.
>
> Q. What does the ruling mean for the NWU's Publication Rights Clearinghouse
> (PRC)?
> A. It means that publishers now have more reason than ever before to
> negotiate collective licensing agreements with the PRC. As long as writers
> stand together and refuse to sign electronic rights over to publishers in
> their individual contracts, the PRC will be in a strong position to
> negotiate additional fees for these rights. And that means that writers
> will be able to share in the revenue generated by the use of their work in
> new media.
>
> FOR MORE INFORMATION ABOUT THE "TASINI V. THE NEW YORK TIMES" RULING PLEASE
> VISIT THE NATIONAL WRITERS UNION WEB SITE:  <http://www.nwu.org>
>
>
> Date: Wed, 29 Sep 1999 15:59:16 -0700
> To: nwu () nwu org
> From: National Writers Union <nwu () nwu org>
> Subject: NWU: Building on Victory - Your Union Needs You

> Dear NWU member:
>
> Our recent victory in the landmark lawsuit Tasini v. The New York Times is
> a very important step forward in our ongoing fight to guarantee that
> writers are treated with dignity and respect.
>
> But all writers must understand that this is only one small step. If
> writers do not, today, join the National Writers Union, we will be no
> better off a few years from now.
>
> The growing power of the media industry, its consolidation across borders
> and its use of its vast resources to force us to sign away our rights and
> refuse to give us our fair share poses a great threat to writers. A threat
> to our very survival.
>
> Every writer must see this threat clearly. And he or she must understand
> that the only way to take this victory and hammer it home, to build on it,
> is to build a powerful, strong Union.
>
> AND WE NEED YOUR HELP!
>
> The document above is a brief Q&A covering few key points of the ruling
> that are especially important for writers. Please copy this document and
> post it on EMAIL LISTS, DISCUSSION GROUPS, WEB SITES and other venues
> frequented by freelance writers. And please include the link at the bottom
> to the NWU web site.
>
> This is information every writer should know.
>
> Thank you for your help.
>
> In Solidarity,
>
> Jonathan Tasini
> President
>
> ________________________________________________________

> _______________________________________
> National Writers Union, UAW Local 1981
> 113 University Place, 6th Floor
> New York, NY 10003
> Ph: 212-254-0279 / Fx: 212-254-0673
> Email: nwu () nwu org
> Web: http://www.nwu.org



Patric Hedlund,       * The most beautiful thing
                      * we can experience
Dendrite Forest, Inc. * is the mysterious.
P.O. Box 912          * It is the source of all
Topanga, CA 90290     * true art and science.
Phone: 310 455-3915   *     --Albert Einstein
FAX: 310 455-1384     *
www.forests.com       *
hedlund () forests com   *

So, what IS a Dendrite Forest?  See <www.forests.com>

*******************************************
Co-founder Ethical Standards & Practices Committee of the AIP



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