National Writers Union to Thomson Corporation

FEDERAL EXPRESS December 13, 1994  

Mr. W. Michael Brown
President
The Thomson Corporation
Toronto Dominion Bank Tower
Suite 2706
Toronto Dominion Centre
Toronto, Ontario
CANADA M5K 1A1   Dear Mr. Brown:  

As the president of the National Writers Union (UAW-AFL- CIO), an organization with 4,000 members throughout North America, I am writing to you concerning the full-text magazine article databases of Information Access Company, whose purchase for $465 million by The Thomson Corporation, according to your recent news release, is currently being consummated. (I am also the lead plaintiff in a lawsuit by a group of NWU members over the practices of several electronic databases; the defendants include the New York Times Company and Mead Data Central, and the trial is scheduled for next year in United States District Court in New York.)  

Three months ago, the co-chairs of the NWU Bay Area Local wrote to IAC president Robert Howells on behalf of 46 writers, including bestselling authors Nicholson Baker, Alice Walker, Isabel Allende, and Jessica Mitford. The Union's research indicates that these writers' works are being distributed, without their permission and without their being compensated, on IAC databases. (In the intervening months, the number of writers authorizing us to pursue this matter with IAC has risen to 66; see the attached appendix.)  

Unfortunately, rather than responding to our call to work together in designing an equitable royalty system for the electronic distribution of our members' works, the company abruptly cancelled a meeting that was scheduled in October. We are therefore reiterating our concerns to IAC's new corporate parent. Enclosed please find copies of the complete file of our correspondence with IAC, as well as coverage in The New York Times and the San Francisco Chronicle both of the general issue of freelance journalists' rights in new electronic media and of our specific inquiries to IAC.  

You will note that a fellow database operator, the CARL Corporation of Denver, *did* respond creatively to our inquiries. Affirming that the technology exists for transaction-based accounting to ensure the payment of proper clearance fees to copyright holders, CARL president Rebecca Lenzini has initiated discussions with us on the design of an equitable royalty system for writers with works in CARL's UnCover database. We encourage IAC to emulate CARL's constructive example.  

The NWU-IAC exchange has also been widely discussed on the Internet, where its implications are obvious. We refer you, in particular, to the Copyright and Intellectual Property Forum moderated by the Coalition for Networked Information; for further information or a complete archive of this discussion, you can send an e-mail message to
<listproc[_at_]cni.org>. Forum moderator Mary Brandt Jensen,
director of the law library and professor of law at the University of South Dakota, has said of creators' rights in electronic databases:  

     The publishers are at fault, but so are the 
     redistributors. It isn't a matter of whether or not 
     the contract gives the author a right to royalty from 
     redistribution. It is a matter of whether or not the 
     publisher acquired any right to redistribute in 
     alternate forms, since the publisher did not acquire 
     the copyright, which is still held by the author. 
     . . .
 

With respect to database operators' licensing agreements with magazine publishers, Ms. Jensen added:  

     Maybe it is reasonable to assume that [database 
     operators] have legitimately bought the right to 
     redistribute in the beginning, but once they have been 
     informed by the copyright owner that the publisher 
     does not own the copyright, the reasonableness of that 
     assumption is gone and I believe they have a duty to 
     investigate. If the publisher cannot produce a signed 
     writing by the original author assigning the 
     copyright, as is required by section 204 (and not just 
     first North American print rights), then services have 
     substantial reason to doubt whether they have bought 
     anything.
 

Copyright law, said Neil Netanel, a law professor at the University of Texas, "recognizes no defense of innocent infringement. . . . [I]f the author has not granted or licensed to the publisher the right to reproduce the material digitally and to make it available for electronic distribution or display, then the vendor has infringed the author's copyright even if the vendor innocently believes that the publisher does have that right."  

We understand that dozens of our members, who have articles in IAC full-text databases from publications as small as Poetry magazine and as large as People, have individually written to you about this matter and urged The Thomson Corporation to enter into a dialogue with the National Writers Union on these important issues. To date, 24 of them have sent us copies of their letters; in case you missed any of them, I am forwarding the complete set to you with this package.  

I look forward to your prompt response.  

Sincerely,  

Jonathan Tasini
President  

c: Mr. Robert Howells

   President
   Information Access Company

--
Irvin Muchnick


<irvmuch[_at_]netcom.com>