San Francisco Daily Journal article

The following article, from the San Francisco Daily Journal legal newspaper, is distributed with the permission of the publisher.  

Irvin Muchnick
Assistant Director
National Writers Union
<irvmuch[_at_]netcom.com>  

PUBLISHED IN THE SAN FRANCISCO DAILY JOURNAL March 1, 1996  

WRITERS HAVE COPYRIGHT SHIELD IN CYBERSPACE   By James Evans
Daily Journal Staff Writer  

Free-lance writers, represented by the National Writers Union, have created a legally significant and potentially lucrative weapon in their battle with publishers over copyright and revenue in cyberspace.  

The union has established the Publication Rights Clearinghouse, a central licensing agency for digital distribution and photocopying of articles when the copyright is owned by the authors instead of the publishers.  

The PRC is similar to the Copyright Clearance Center, which primarily services as a licensing organization for publishers, and was central to one of the key court decisions allowing for copyright payments for photocopied materials, *American Geophysical Union v. Texaco Inc.*, 60 F.3d. 913 (1994).  

In that case, the 2nd Circuit Court of Appeals ruled that companies could not avoid paying for photocopying privileges based on the impracticality of finding individual publishers and authors when a structure existed to make paying licensing fees convenient.  

"No matter how much it's used at first, the mere existence
of the PRC is terribly important legally and politically because it establishes that there is a market for digital materials, and that we are, as a creative community, being conscientious about these knotty problems in digital media," said Irvin Muchnick, the union's Oakland-based assistant director.  

The PRC has signed a nonexclusive agreement with only one company so far, but it is a big one -- UnCover, operators of the largest article and journal database in the country. UnCover recently was purchased by the Knight-Ridder Corp., which also owns the San Jose Mercury News.  

On a quarterly schedule, writers will receive 30 percent of the $8.50 that UnCover charges its customers for each article. From that payment PRC subtracts administrative costs of 20 percent for union members or 25 percent for nonunion  members.  

Muchnick said he expected other companies to see how the PRC conducted business before following UnCover. "Our real target is the Information Access Co., owned by Thomson Publishing in Canada," he said.  

"We would like to get them signed on, but they haven't
responded yet," Muchnick said. "They keep pointing to their license agreements with publishers, and we keep pointing out that those agreements aren't valid because they include licenses to material owned by writers, not publishers."  

He added that he expected the PRC to have a favorable impact on *Tasini v. New York Times*, 93-CIV8678 (SS), a case in the U.S. District Court for the Southern District of New York, involving the digital reproduction of work owned by writers.  

Local copyright counsel agreed that the PRC could change the tide in the writers' struggle with publishers over copyright in cyberspace.  

"It's a good accommodation of the increasing tendency for
publishers to go on-line and take advantage of the stratospheric demand for on-line publications, and at the same time to protect rights of writers to be compensated for their work," said Karl Olson, a partner at San Francisco's Cooper, White & Cooper.  

"If it's technologically feasible [to pay individual
authors], then it undercuts the argument that it's impractical to do it," he said. "The PRC seems like a marketplace solution that avoids legal problems that are being fought in the Tasini case.  

"I would think that both publishers and writers would
accept [the PRC] if they could avoid duking it out in court," Olson said. "But the legal rules are being made up as we go along in cyberspace, and to a large extent, they will be shaped by what can be done technologically."  

Roy S. Gordet, a San Francisco copyright specialist who has represented the National Writers Union, said publishers might not like the PRC because it removes an excuse for not paying authors.  

"In the Texaco case, companies couldn't say that it was too
hard to track down publishers, because there was a structure set up," he said. "Similarly, in the PRC, there's a structure in place, and it's intended to facilitate licensing.  

"The PRC is a starting point, and it will be improved,"
Gordet said. "The [Copyright Clearance Center] has signed on big corporations that are concerned about getting nailed for illegal copying."  

David Hayes, head of the intellectual property practice at Fenwick & West, said the PRC was an "important development" that was necessary to realize the marketing potential of online  and multimedia products.  

"Over time in both cyberspace and the multimedia industry,
we must have a central place to get clearances; otherwise, ?1;0cit's impractical," he said. "The CCC has worked well, but it's more oriented toward business-type publications. The PRC is more oriented toward writers.  

"I believe there's room for both of them, and I certainly
think it's a good idea," Hayes added. "I definitely think it has legal importance in light of *Texaco*."  

Copyright 1996 Daily Journal Corporation  

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