The Tasini decision: victory for freelance authors

This week the US Supreme Court ruled in favour of six freelance authors, allowing them to retain electronic reproduction rights in their printed articles.

The authors, headed by Julian Tasini (president of the National Writers Union), sued the publishers of the New York Times, Newsday and Sports Illustrated for infringement of copyright by allowing the publication of the author’s articles on electronic databases without consent.

US federal law provides that the copyright in a collective work as a whole belongs to the publisher. The publishers argued under Section 201 of the 1976 Copyright Act that they were reproducing and distributing each article as part of a collective work and therefore the authors did not retain any electronic reproduction rights.

Electronic database users search for articles by a variety of means – eg date/key word/subject/heading – and each article then appears as an article in isolation. Raising this in her judgment on behalf of the majority, Justice Ginsburg rejected the publishers’ defence, finding that because of the nature of reproduction and distribution by electronic database, articles become individually retrievable and are no longer perceptible in context as part of a collective work.

The Tasini ruling will make little difference to the copyright in recent articles since most contracts now provide for electronic reproduction. However, it will have a major impact on “pre-internet” licences since freelance authors will now be entitled to electronic reproduction rights. The publishers warned that judgment in the authors’ favour would have a devastating effect upon electronic history records and would lead to the deletion of large sections of newspaper archives. However, it is possible that the authors and publishers will enter into some type of agreement allowing continued electronic reproduction in return for a distribution fee. The National Writers Union have written to various media companies inviting publishers to enter into negotiations to set up a compensation system.

There is no equivalent to Section 201 in UK copyright law and consequently this case has no direct legal bearing on the UK. However, it does affect the general global climate for electronic publishing and represents a major victory for freelance authors.

Bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.