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

On Mon, Oct 04, 1999, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
>
> On Fri, Oct 01, 1999, John Noble <jnoble[_at_]dgsys.com> wrote:
> >
> > On 9/30/99, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
> > >
> > > As I understand it, neither judge in Tasini held that it was an
> > > infringement for an entire collective work to be added to an online
> > > database. The infringement occurs, as I understand it, when an
> > > INDIVIDUAL article is retrieved or copied from that database
> > > SEPARATELY from the collective work of which it is a part. For
> > > example, the New York Times owns the copyright in the Sunday,
> > > September 26, 1999 issue of the New York Times Magazine. It does
> > > not necessarily own the copyright in the individual items of content
> > > therein, only the copyright in the collection. Because it owns that
> > > copyright, it can license the entire collective work to LEXIS/NEXIS
> > > or whomever, for reproduction in an electronic database, and that
> > > constitutes a protectable "revision" of the work under Sec. 201(c)
> > > of the Act. However, what the appellate court held is that, under
> > > that license, ONLY the entire collective work may be viewed or
> > > downloaded; the license does NOT give the New York Times or its
> > > licensee the right to reproduce and sell separate copies of the
> > > individual articles apart from their appearance in the magazine
> > > issue as a whole. For these, the authors must be separately
> > > compensated.
> > >
> > > This is only my reading of this opinion--I'd be interested to
> > > hear from anyone who has a different interpretation of the impact
> > > of this decision.
> >
> > 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)?

Interesting point. If the microfilming were part of the library archives or fair use exemptions/defenses, then the library would seem to me to be on safe legal ground. However, if the library obtained a license or permission from the collective work's copyright holder (without getting approval from the individual contributors, of course), it would seem to me to be fairly troublesome under this analysis. The same also goes for permissions for course reserves in the library, etc. I'd appreciate hearing more on this topic if we're already not talked out.

Steven Anderson
Librarian
Gordon Feinblatt Rothman Hoffberger & Hollander, LLC 233 East Redwood Street
Baltimore, MD 21202
Phone: 410.576.4255
Fax: 410.576.4246
E-Mail: sanderson[_at_]gfrlaw.com
Web: http://www.gfrlaw.com/ Received on Wed Oct 06 1999 - 14:32:36 GMT