Court Says CD-ROMs Of Magazine Archives Don't Violate Copyrights Of Article Authors

from the phew dept

There have been a series of lawsuits over the years concerning whether or not magazines could create CD-ROM archives of their magazines without having to pay all their freelance authors again. The court rulings have been mixed, to say the least — with some ruling one way, and others ruling the other. The end result was some rather twisted logic that suggested magazine publishers could republish magazines via CD-ROM, but only if they did so in an incredibly annoying fashion.

Why? The reasoning shows the twisted impact of copyright law, but here we go: basically, if the CD-ROM is just a very limited reproduction of the magazines without any additional features (search being a key one), then it’s okay. As soon as you add in anything useful that a digital version would allow (like search), then suddenly it changes the nature of the work, and it somehow violates the copyright of the writers. Bizarre? Indeed.

Luckily, however, in one of the ongoing cases, a full appeals court rehearing has reversed an earlier ruling, pointing out just how ridiculous this interpretation is. So, at least in this circuit, publishing a CD-ROM archive (even one with a search engine) appears not to violate the copyright of freelancers. However, as that article notes, what’s truly scary is reading through the dissent by the judge who insists that the inclusion of that search engine really does change the very nature of the work, and who controls the copyright. Where it reaches the level of the truly absurd, however (as pointed out in the link above), is where one of the dissenting judges actually suggests that not allowing these archives to go forward wouldn’t impact the historical archives of this content, because magazine publishers could just store archives that would only be available to be “utilized primarily by researchers and scholars.” However, actually taking advantage of what the technology allows, and making it so everyone can benefit, and you’ve run afoul of copyright law. Luckily, the majority overruled this tortured reasoning.

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Comments on “Court Says CD-ROMs Of Magazine Archives Don't Violate Copyrights Of Article Authors”

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lavi d (profile) says:

However, actually taking advantage of what the technology allows, and making it so everyone can benefit, and you’ve run afoul of copyright law. Luckily, the majority overruled this tortured reasoning.

That is probably the biggest impact of modern information technology – Illuminating the dark corners of reason that hold that somehow only “corporations”, “journalists”, “experts”, what-have-you are the only ones who should be allowed to create, manipulate and distribute information.

It is truly disturbing that the “broadcast” mentality so alive and well and that so many otherwise intelligent people can’t seem to grasp that the this type of thinking is truly archaic.

hmmph says:

upsets precedent

CDs are copies, and it’s the copyright owners who have the right to determine how a work is copied and distributed.

Creatives (authors/photographers/illustrators) who signed a contract with a publisher giving “all rights” to a work essentially sold the work and would have no further interest or control. But without that specific transfer of all rights from the author to the publisher, the work was only licensed to the publisher under “first rights.” The copyright remained with the author.

All rights are obviously worth more than limited rights. If NG had all rights to these works and paid the value of all rights, they would be free to copy them and to make money on those copies. Because they own the copyrights, they could also sell all or license some rights to others.

Otherwise, without a contract transferring all rights to the publisher, it is the author who retains ownership of their work, and has the right to copy it and continue to make money on it.

Or they did, until this incredible ruling, which amounts to a massive taking of property. It boils down to a shift of ownership – the right to copy – with the law being interpreted in favor of a giant company at the expense of thousands of individual creatives.

Is that what you’re cheering for?

NG is spending the money to publish these works in a new format with new distribution to new audiences. They couldn’t very well steal the disks and packaging materials, but they very well did steal the property of the only ones now being cut out of the profit loop – the very people who created the content and still owned their work, until today.

DanC says:

Re: upsets precedent

this incredible ruling, which amounts to a massive taking of property. It boils down to a shift of ownership – the right to copy

No, what this ruling did was correctly interpret section 201(c) of the US Code, which states:

Contributions to Collective Works. — Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

In other words, since the CD-ROM is simply a reproduction of the collective work, National Geographic is well within its rights to reproduce the articles and photographs. Notice the law says nothing concerning a change in format. If National Geographic wants to reprint an issue, they have the legal right to due so, regardless of format.

Adding in the ability to search through the issues does not somehow make the CD-ROM archive a new collective work. Each issue in the archive was an exact reproduction of the original issue.

The situation is really no different than the standard practice of archiving old issues using microfiche and a card catalog. The CD-ROM archive is simply the digital version of that system.

So, your statement that this ruling constitutes a transfer of ownership is simply wrong.

Is that what you’re cheering for?

Yes, we’re cheering for common sense and the correct interpretation of the law.

Sean says:

Tortured Logic

I wonder sometimes if, knowing that they are in the minority, dissenting judges embark on “what-if” flights of fancy in order to stir up debate and providing a bit of colour to otherwise dry and logical opinions?
Of course, the problem is when the majority judges have embarked on such flights of fancy and that’s what becomes binding, such as Scalia is prone to…

GK says:

scanned illustrations

The companies cannot claim copyright of the illustrations themselves, but the manifestation of the illustration. The rights to the particular digital copy of the illustration will belong to the company. The use of the digital copy is not explicitly allowed. However, someone else can create a second digital copy of the same illustration and make it available without infringing the rights of the first company.

Terre says:

upsets precedent

The question is whether reproducing a collective work on CD infringes on authors’ copyrights, or whether republishing authors’ work without compensation is a ‘privileged revision’ of collective works under section 201(c) and therefore allowed.

How you feel about either probably depends on whether you are a creative whose living depends on ownership of what you produce.

In this case the decision (Greenberg v. National Geographic Society, 11th Cir., No. 05-16964, 6/30/08) favored National Geographic — the magazines are collective works and can therefore be reproduced on CD without compensating authors, under the 201(c) privilege.

This reverses an earlier decision (which was itself a reversal of a precedent set by the Supreme Court in NYTimes v Tasini) which held that the electronic publisher infringed on authors’ copyrights by publishing their articles without permission, and using the articles in a database were not privileged reproductions under 201(c).

As Martha L. Arias of Internet Business Law Services writes, “The transfer of collective copyrighted works from original prints to databases or electronc forms is redefinigh copyright principles and laws.”

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