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Copyright In An Internet World

by

Daniel Steven

Unless you’ve been asleep for the last decade, you know that the Internet has created a new set of legal issues for web content creators and publishers.  Recently, two court cases have made it clear that American copyright law--last substantially revised in the 1970’s--is barely adequate for a digital age.

First, let’s review the basics.  You already should know the author owns the copyright of their content the instant it is “fixed” on paper, disk, video, photograph or other tangible medium (unless it was “work for hire,” but that’s another subject).  You, the author, own all rights -- print, electronic, digital, movie, and reproduction.  When you “sell” the content to a web site or publisher, you are actually assigning some or all of these rights to the publisher, for a period of time. 

This grant of rights may be explicit (a written agreement) or implicit.  In essence, you are giving the publisher a license to print, distribute, advertise and/or market your work.  This license may be “one time only,” for a period of years, or for the duration of your copyright; it may be for print only, for electronic only, or a combination.  Ideally, all this should be specified in a publishing or contributor’s agreement.

But what if you assign the rights to your work for print publication, but are silent about electronic rights?  This was the issue confronted by the Supreme Court in New York Times v. Tasini, a case originally filed in 1993.

Jonathan Tasini, President of the National Writer’s Union, and nine other freelance journalists sued the New York Times and other publications for copyright infringement when they discovered that articles they had written for the defendants had appeared on online databases and CD-ROMs.  In most cases, the articles had been assigned by the authors without a written contract, but most of the authors thought they had an oral understanding that they were assigning the customary “first serial rights” ¾ first publication in a print medium. 

The lower court found in favor of the New York Times, holding that because the entire print edition had been placed online, such use was within the traditional rights of the owner in the collective work.   The Supreme Court, however, ruled that the Times only had the right to reproduce and distribute the authors’ work in the edition in which it first appeared, and subsequent print editions.  The Times was not entitled to reproduce the work in on-line databases because these databases separated the work from its original context.

Further, in Random House v. Rosetta Books, (July, 2001) a New York federal district court ruled that an electronic version of a book is not necessarily a "book," and therefore Rosetta Books could sell online electronic versions of books written by authors who had previously assigned “book” rights to Random House.  The judge’s decision was primarily based on the specific language of the original publishing agreements.  These agreements, written in the 60’s, were naturally silent about electronic versions because they did not exist at the time.

Although most publishing contracts already address digital and electronic rights, you can expect new efforts by publishers to present authors with broad contract language tying up electronic rights, often without additional compensation. As an author, you must think about exactly what rights you want to license, and for how long. The rights you transfer should directly affect the price¾the more rights, the higher the price.  Specifically, it is reasonable to ask for a time limit on the publisher’s right to publish in digital format, with the requirement that additional compensation be paid for a renewal. The best approach is to be direct and specific about all of the rights involved, and ¾ put it in writing!

Above all, keep up with developments in this evolving area of law.

© Daniel Steven 2001

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