Technology &
Internet Law

The Rights of Freelance Authors Enhanced

Press release (27th June 2001)

The US Supreme Court has just ruled in the landmark case of New York Times Co Inc v Tasini [Case No 00-201, 25 June 2001] that freelance writers and journalists have control over the question of whether copyright material they sold for print can be used in electronic form. The highest court in the US held by a 7 to 2 majority that freelance writers who are engaged as independent contractors (as opposed to employees), who explicitly authorise the use of their material in print form, do not thereby also authorise use of such material in electronic form, unless it had also been expressly stipulated. 

Some have hailed this decision as a victory of writers over big media corporations which allegedly have, with impunity, appropriated from creators their fundamental rights. The ruling in essence holds that a publisher who resells freelance newspapers and magazine articles via electronic databases without the consent of or additional payment to the original authors, commits copyright infringement. 

The publishers in this case had argued that if  their actions (reselling print databases as electronic databases) amount to copyright infringement, then the consequences would be 'devastating', in that it would necessitate the deletion of freelance writers' articles. This argument was rejected by the Supreme Court which felt that there are alternative ways of dealing with the concern, aside from destroying such material. For example, authors and publishers could enter into agreements allowing continued electronic reproduction of the authors' works. Moreover, publishers, authors, the courts and legislators could draw on various models for distribution of such works by paying authors appropriately. Be that as it may, questions loom as to whether publishers will actually withdraw electronic editions from their sites instead of paying up. Alternatively, authors may decide not to ask for payment in return for the publicity which goes with electronic publication. 

Although this is a US decision, it is likely to have a strong influence on the English courts should the issue ever come before them. Furthermore, most publishers publish electronically in the US. Therefore, it has to be taken seriously here too. 

It must be said that this decision will hardly affect copyright agreements concluded recently because these days all such agreements explicitly cover electronic editions. However, "pre-Internet" agreements would certainly be affected. Accordingly, both publishers and authors subject to such agreements ought to take legal advice carefully, with a view to not only addressing the legal concerns but also the commercial ramifications.

NEED TO KNOW MORE?

For further information on Internet and copyright law and how intellectual property law relates to the Internet, contact Maitland Kalton or Julian Danobeitia.  Should you prefer to telephone, call us on +44 (0)207 278 1817.

Kaltons Solicitors, Suite 302, Spitfire Studios, 63-71 Collier Street, London, N1 9BE. Telephone +44 (0)20 7278 1817; Fax: +44 (0)207 278 1835.

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