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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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« Can Patent Policies be Socially Responsible? | Main | RIM, NTP Start Settlement Dance »

December 13, 2005


1. aggrieved rightsholder on December 13, 2005 11:01 PM writes...

No, this is not an implicit confirmation that an exact electronic replica is a permissible "revision" under the limited revision privilege for a collective work granted under 201(c ), thus negating the need for compensation to the authors.

It is extremely hard to get the Supreme Court to review anything even when there is a split in the circuits.

Greenberg v. National Geographic won in the 11th Circuit. The Supreme Court refused certiorari on that case in 2001.

Then National Geographic won against authors in the 2nd Circuit. Both authors and National Geographic requested a Supreme Court review, but it has been refused again.

Here is good explanation of the history, from The Copyright Society of the USA:

“At issue is the interpretation of section 201 (c) of the Copyright Act, which provides: 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 [1] that particular collective work, [2] any revision of that collective work, and [3] any later collective work in the same series.

In Tasini, the Court had held that a New York Times’ CD-ROM database of articles collected from Times print editions was not a “revision” of the print editions under section 201 (c), in part because the database reproduced the articles in “stand- alone” form rather than in the context of the original print versions. The Court held that such use of the articles by the Times without further permission from the freelance authors therefore infringed the authors’ copyrights in the articles.

Within weeks after deciding Tasini, the Supreme Court denied certiorari in Greenberg v. National Geographic Society, an 11th Circuit case in which a photographer had challenged a CD-ROM collection of National Geographic magazines: The Complete National Geographic. Unlike the New York Times’ database, the National Geographic CD-ROM presented an exact electronic image of the original paper editions of National Geographic magazines. The 11th Circuit nevertheless held that The Complete National Geographic did not qualify as a “revision” of the original print versions of the magazines, because the CD- ROM added new copyrightable material to the magazines (such as introductory material, additional ads, and a computer program), and that the CD-ROM therefore infringed the copyrights of the freelance magazine contributors.

Two years later, however, in a separate challenge to the same National Geographic CD-ROM, the District Court for the Southern District of New York reached the exact opposite result from Greenberg. In Ward v. National Geographic Society, the District Court held that The Complete National Geographic CD-ROM is a permissible revision of the original print magazines, because each page of each issue appears in exactly the same context as it did in the original print version. This decision was recently affirmed by the Second Circuit (reported as Faulkner v. National Geographic Enterprises, Inc.). Four weeks ago, attorneys for photographer Fred Ward filed a petition for writ of certiorari seeking Supreme Court review of this decision—a review that National Geographic’s lawyers agree should take place."

Unfortunately, since the Supreme Court has let these disparate appellate rulings stand, many publishers will choose to reap the windfall of continuing unjust exploitation of literary and artistic works of freelance rightsholders, without authorization from, or compensation to, the creators whose works are disseminated.

As a final note, it is important to understand that the 1976 Copyright Act took 20 years to formulate and pass. The legislative history is replete with considerations of the digital future.
When Congress created the new display right, it specifically considered and rejected a proposal by publishers to merge the display right with the reproduction right, notwithstanding its recognition that "in the future electronic images may take the place of printed copies in some situations."

Section 201(c) was intended to limit a publisher’s exploitation of freelance authors’ works to ensure that authors retained control over subsequent commercial exploitation of their works.

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2. drwex on December 16, 2005 9:45 AM writes...

That's certainly an extensive explication of one side of the argument but it misses the fundamental point. When a lower court establishes a doctrine in ruling and SCOTUS refuses to hear appeals then by default that doctrine becomes precedent for the area covered.

If, as you say, there are conflicting Circuit ruling that's good grounds for SCOTUS to grant cert. They seem not to have seen it that way, however.

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