Re: Tasini v. NY Times reversed by 2d Circuit

On 10/4/99, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
>
> On Fri, Oct 01, 1999, John Noble <jnoble[_at_]dgsys.com> wrote:
> >
> > My own reading is that the court pointed to the ability to retrieve
> > individual articles as only one more indication that licensing the
> > original collective work to the database was not protected under the
> > right to publish revisions of the collective work.
> >
> > The Court held that "the privilege afforded authors of collective
> > works under Section 201(c) does not permit the Publishers to license
> > individually copyrighted works for inclusion in the electronic
> > databases." When you license the collective work to the database
> > you are necessarily also licensing the individual works included in
> > the collective work. So I think it is clear (at least in the 2d Cir.)
> > that NYT cannot license the collective work to the database, without
> > authorization from the individual copyright holders.
> >
> > In addition, unless I missed something, the publishers were held
> > liable for direct infringement, but if the only infringement was
> > the retrieval of an individual article from the database, then the
> > publishers could only be liable for contributory infringement.
>
> If Mr. Noble's analysis is correct (and I'm not saying that it
> isn't), how do we distinguish licensing a collective work to an online
> database from allowing libraries to make microfilm copies of such
> collective works (which are used in exactly the same way, for search
> and retrieval of individual articles)?

I can't figure what I said that prompted this question. What I was suggesting I thought was that the retrievability of individual articles was just one indication among many that the database was not a revision of the collective work. I think it pales beside the fact that the database is far more extensive than the original collective work. It simply doesn't look, feel or smell like a _revision_ of the daily edition of the NYT.

The privilege of revising a collective work belongs to the owner of the copyright in the collective work so I assume your hypothetical contemplates a formal grant of some kind from the NYT to the library to make the microfilm. If the NYT has the right to distribute the original collective work in microfilm, then arguably it can transfer that right to the library, so long as the library preserves the essential selection and arrangement of the original collective work. But this raises the question, which the 2d Cir. ducked -- whether the privilege is transferable.

John Noble
<jnoble[_at_]dgsys.com> Received on Wed Oct 06 1999 - 01:00:36 GMT