US freelances suffer technical defeat

FREELANCES who sued the New York Times, Sports Illustrated the Lexis/Nexis on-line database and CD-ROM publisher UMI, over unauthorised re-sale of their work, have lost on a strange technicality. The six freelances who pursued the case, launched in December 1993, are members of the US National Writers Union. One, NWU president Jonathan Tasini, commented: "All writers must understand that this is only the first round... We ultimately will win this argument in a court of law -- or, if need be, in Congress." The effect of the verdict is extremely narrow and, as Tasini says, "Under no circumstances should writers give away their rights to electronic databases or CD-ROMs based on this case."

Judge Sonia Sotomayor in New York rejected the publishers' main arguments -- that they were contractually entitled to re-sell articles, implicitly or through the claim that writers, by signing the backs of cheques, agreed to this. (In the US, banks will not accept any cheque unless it is signed on the back.) But, in her judgement of 13 August, the judge held that the on-line databases are "revisions" of the New York Times, Sports Illustrated and other publications. Therefore, under a section of US copyright law dealing with "collective works", she ruled that the electronic versions are not separate publications.

Even if Judge Sotomayor's ruling survives appeal, the NWU is clear that it does not apply to the World-Wide Web.

It speaks only of databases and CD-ROMs, made in the USA, which reproduce whole newspapers or magazines. And it has no effect under UK statute: the Freelance has re-read the Copyright, Designs and Patents Act 1988 and cannot find any basis for arguing that a database is a "revision".

Claire Safran, president of the American Society of Journalists and Authors, commented that "while Judge Sotomayor's reading of the law and her logic may seem reasonable, her understanding of electronic publishing is seriously flawed."

The Union of Journalists in the Netherlands (NVJ) offered its support for an appeal, and noted that three of its members expect judgement in a similar case at the end of September.

Of course, if a freelance signs an explicit contract giving away rights in an individual piece of work, under US and UK law the publisher can then do what they want with the work, and make money in ways it has not yet dreamed of.

SO: resisting such "all rights" contracts is as important than ever, or more so. The NWU is considering Judge Sotomayor's strong hint in concluding her judgement, that legislation to protect authors' rights may be the answer.

BY Mike Holderness