Thursday, November 8, 2001

tech.life@school | Joyce Kasman Valenza

Fallout from Ruling on Writers' Rights

The high court's decision in favor of freelancers led to a decimation of archives in electronic databases.

When the case against Napster weighed the ease of downloading digital tunes against fairer compensation for artists, we all took notice.

But when the U.S. Supreme Court decided Tasini v. New York Times, a similar copyright case, in favor of freelance writers on June 25, few outside the publishing world took note. Let me fill you in on the deepening black hole that should concern all who are serious about research.

In effect, the Supreme Court ruled that freelance writers can control whether the work they originally sold for print publication may be reproduced in digital form.

The National Writers Union argued that under the 1976 version of the Copyright Act, freelance writers retained control of any subsequent publication of their work after its initial publication in a newspaper or magazine and should be compensated for commercial reproductions.

For freelance authors, retention of copyright is critical. Secondary rights granted to other publications in such forms as syndication or translation signify income.

The big question was whether the reprinting of articles in the electronic databases we rely on for our full-text access represented a new use of the article, or merely a reprinting. While newer contracts now ask writers to sign over electronic rights with the initial publication of their work, publishers had been selling the freelancers' work to database companies for years without compensating, or even notifying, the writers. If this type of use were determined to be merely a reprint, no additional consent or compensation would be necessary. But it was not. The Supreme Court ruled in favor of the writers and damages are now to be determined by a lower court.

As a freelance writer, a researcher, a consumer of digital material, and as a librarian, I found myself with concerns on every side of this debate. I was on the side of fair compensation and of defending intellectual-property rights but troubled by their practical ramifications on information users. Tasini has had an effect on my Inquirer columns, too. The older portion of my archives - the portion not covered by a secondary-publications-rights contract - is no longer accessible to the public.

This issue hit home for me early in the school year when I was helping a student find New York Times book reviews. I relied heavily on the rich, free archive that, just last spring, extended back to 1980. After Tasini, the New York Times decided to remove freelance works from its archives rather than compensate those writers for this secondary use. The newly truncated archive of reviews begins in 1996. In fact, the New York Times has removed 115,000 items, the work of 27,000 authors written between 1980 and 1995, from its own archive and its archives in electronic databases.

Because of revised contract language, which began around 1996 when writers signed off on electronic republication rights, recent material is secure in electronic databases. But here's the consumer warning: The archival infrastructure that we counted on for coverage of a 15- to 20-year period in our newspaper and journal databases is not what it used to be.

In some ways, Tasini backfired. At the same time the writers won the battle, they may have lost the war. Instead of consulting with authors and deciding on appropriate compensation, many publishers decided to avoid potential copyright-infringement risks by simply removing chunks of material. In the case of the New York Times, freelancers were offered the opportunity to restore their materials, without compensation, by completing an online form.

I asked Allen Paschal, chief executive officer of the Gale Group, a major online content provider, for his take on the Tasini fallout. Paschal told me that when Tasini was filed in 1993, proactive publishers began deleting files, and updating and renegotiating their contracts with writers.

"But some publishers did nothing," said Paschal. "And the impact of the decision has been one of panic, with publishers scrambling to identify and delete freelance materials."

Paschal noted: "One option for the publishers would have been to withhold material for a time while they asked freelancers for permission to republish."

But as Paschal sees it, the publishers took an ultraconservative stance. "They were scared to death, and their reaction was knee-jerk. It's a disservice to the public and to the journalists."

While a number of the database vendors I contacted told me that a relatively small portion of items have been removed from their archives, it was clear that they were not going to win friends or gain customers by hyping deepening holes in their data.

"In a stressed economic environment, database vendors are not about to advertise that their products are substantially less," said Barbara Quint, editor in chief of Searcher magazine, a freelance writer, and a longtime online searcher. "Some publishers are making partial pulls. The San Diego Union-Tribune yanked its entire archive, not caring whether or not the material was written by freelancers. Publishers are hoping the average researcher won't notice."

Quint told me that in most cases, the indexing records of items have been destroyed along with the full-text articles, leaving no trace of the material, and damaging the integrity of the archive.

Quint noted that subscription databases are valuable for their comprehensive coverage. "If the database has been 'Tasini-ed,' out of a 10-feature journal, suddenly four features are not there. With this kind of unreliability, you might as well take your chances on the Web," she said. Quint believes that disenchanted users are likely to turn away from subscription services and take their chances on the free Web.

Can we properly compensate content creators and avoid a Swiss cheese archive for researchers? Can we as Quint urges, "stop the trash trucks"?

The jury is still out, but I am glad I clung to my microfilm!

On the Web

Tasini v. New York Times Company (FindLaw) http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=00-201

Tasini v. New York Times Company (NWU page) www.nwu.org/tvt/tvthome.htm

Tasini v. New York Times Company (New York Times page) www.nytco.com/pressroom/freelance/

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