Confessions of a Mad Librarian

News librarians have been closely watching three cases regarding rights of freelance writers/photographers vs. those of publishers: Tasini v. New York Times [Tasini, i.e. the freelancers won], Greenberg v. National Geographic Inc. [freelancers won] and Faulkner v. National Geographic Enterprises Inc.

The 2nd Natl Geo case was decided last year, with the court deciding in favor of the magazine.

Now, the 2nd U.S. Circuit Court of Appeals has upheld the lower court's ruling for Natl Geo.

In Tasini, the Supreme Court held that articles appearing on popular search engines that separate the articles from their context are not a protected "revision" under copyright law. As a result, the Court held that publishers had violated the rights of freelance authors in presenting these articles individually, out of the collective group in which they originally appeared.

The Court also noted, Judge Winter said, that collections placed on microfilm and microfiche were permissible uses of the copyright granted to publishers because these collections preserved the context in which the articles first appeared, unlike electronic databases, which separate them.

National Geographic's compilation included characteristics resembling microfiche.

There appears to be some conflict between the two Natl Geo cases. However, a key part of the 2nd Circuit Court's ruling is that the first case was decided before the Tasini decision and there has been a significant change in the law since the March 2001 finding of copyright infringement (which predates Tasini by only 3 months).

The big issue appears to be context. In Tasini, the republished works of the freelancers were made available separate from the other published material (whether through web archives or aggregated databases like Lexis/Nexis and Factiva). For Faulkner, the court has found that the circumstances of the digitization AND display made the CD-ROM compilation functionally equivalent to a microfilm of the magazine and thus non-infringing.

What does this mean (other than that news librarians won't slit their wrists over the unfairness of it all)? This could bolster electronic archiving and the idea that such products (CD compilations, PDF archives) may complement microfilm as a way of preserving the "paper of record". Replacing microfilm may be far off in the future, but one obstacle has been removed for those who are looking to towards that future.

Also, 4 of the 5 major U.S. library associations (no SLA in this one) filed an amicus brief in the appeal of the Greenberg decision, siding with Natl Geo and arguing that the CD compilation functioned like microfilm and supporting "the right of scholars and researchers to combine pre-existing works with the necessary software to provide a searching capability."

However, this appears to have no bearing on third-party digitization efforts, such as the Google deals. I'm sure lawyers and librarians can parse this out better than I can.