[Congressional Record Volume 147, Number 21 (Wednesday, February 14, 2001)]
[Extensions of Remarks]
[Pages E182-E183]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        A VIEWPOINT ON THE SUPREME COURT CASE NY TIMES V. TASINI

                                 ______
                                 

                         HON. JAMES P. McGOVERN

                            of massachusetts

                    in the house of representatives

                      Wednesday, February 14, 2001

  Mr. McGOVERN. Mr. Speaker, I submit for the Record this letter from 
Marybeth Peters, the Register of Copyrights at the U.S. Office of 
Copyrights, establishing her position on the U.S. Supreme Court Case, 
NY Times versus Tasini.

                                           Register of Copyrights,


                                          Library of Congress,

                                Washington, DC, February 14, 2001.
     Congressman James P. McGovern,
     Cannon House Office Building,
     Washington, DC.
       Dear Congressman McGovern: I am responding to your letter 
     requesting my views on New York Times v. Tasini. As you know, 
     the Copyright Office was instrumental in the 1976 revision of 
     the copyright law that created the publishers' privilege at 
     the heart of the case. I believe that the Supreme Court 
     should affirm the decision of the court of appeals.
       In Tasini, the court of appeals ruled that newspaper and 
     magazine publishers who publish articles written by freelance 
     authors do not automatically have the right subsequently to 
     include those articles in electronic databases. The 
     publishers, arguing that this ruling will harm the public 
     interest by requiring the withdrawal of such articles from 
     these databases and irreplaceably destroying a portion of our 
     national historic record, successfully petitioned the Supreme 
     Court for a writ of certiorari.
       The freelance authors assert that they have a legal right 
     to be paid for their work. I agree that copyright law 
     requires the publishers to secure the authors' permission and 
     compensate them for commercially exploiting their works 
     beyond the scope of section 201(c) of the Copyright Act. And 
     I reject the publishers' protests that recognizing the 
     authors' rights would mean that publishers would have to 
     remove the affected articles from their databases. The issue 
     in Tasini should not be whether the publishers should be 
     enjoined from maintaining their databases of articles intact, 
     but whether authors are entitled to compensation for 
     downstream uses of their works.
       The controlling law in this case is 17 U.S.C. Sec. 201(c) 
     which governs the relationship between freelance authors and 
     publishers of collective works such as newspapers and 
     magazines. Section 201(c) is a default provision that 
     establishes rights when there is no contract setting out 
     different terms. The pertinent language of Sec. 201(c) states 
     that a publisher acquires ``only'' a limited presumptive 
     privilege to reproduce and distribute an author's 
     contribution in ``that particular collective work, any 
     revision of that collective work, and any later collective 
     work in the same series.''
       The Supreme Court's interpretation of section 201(c) will 
     have important consequences for authors in the new digital 
     networked environment. For over 20 years, the Copyright 
     Office worked with Congress to undertake a major revision of 
     copyright law, resulting in enactment of the 1976 Copyright 
     Act. That Act included the current language of Sec. 201(c), 
     which was finalized in 1965 of interests.
       Although, in the words of Barbara Ringer, former Register 
     and a chief architect of the 1976 Act, the Act represented 
     ``a break with the two-hundred-year old tradition that has 
     identified copyright more closely with the publisher than 
     with the author'' and focused more on safeguarding the rights 
     of authors, freelance authors have experienced significant 
     economic loss since its enactment. This is due not only to 
     their unequal bargaining power, but also to the digital 
     revolution that has given publishers opportunities to exploit 
     authors' works in ways barely foreseen in 1976. At one time 
     these authors, who received a flat payment and no royalties 
     or other benefits from the publisher, enjoyed a considerable 
     secondary market. After giving an article to a publisher for 
     use in a particular collective work, an author could sell the 
     same article to a regional publication, another newspaper, or 
     a syndicate. 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.
       In fact, at the time Sec. 201 came into effect, a respected 
     attorney for a major publisher observed that with the passage 
     of Sec. 201(c), authors ``are much more able to control 
     publishers' use of their work'' and that the publishers' 
     rights under Sec. 201(c) are ``very limited.'' Indeed, he 
     concluded that ``the right to include the contribution in any 
     revision would appear to be of little value to the 
     publisher.'' Kurt Steele, ``Special Report, Ownership of 
     Contributions to Collective Works under the New Copyright 
     Law,'' Legal Briefs for Editors, Publishers, and Writers 
     (McGraw-Hill, July 1978).
       In contrast, the interpretation of Sec. 201(c) advanced by 
     publishers in Tasini would give them the right to exploit an 
     article on a global scale immediately following its initial 
     publication, and to continue to exploit it indefinitely. Such 
     a result is beyond the scope of the statutory language and 
     was never intended because, in a digital networked 
     environment, it interferes with authors' ability to exploit 
     secondary markets. Acceptance of this interpretation would 
     lead to a significant risk that authors will not be fairly 
     compensated as envisioned by the


                        The Public Display Right

       Section 106 of the Copyright Act, which enumerates the 
     exclusive rights of copyright owners, includes an exclusive 
     right to display their works publicly. Among the other 
     exclusive rights are the rights of reproduction and 
     distribution. The limited privilege

[[Page E183]]

     in Sec. 201(c) does not authorize publishers to display 
     authors' contributions publicly, either in their original 
     collective works or in any subsequent permitted versions. It 
     refers only to ``the privilege of reproducing and 
     distributing the contribution.'' Thus, the plain language of 
     the statute does not permit an interpretation that would 
     permit a publisher to display or authorize the display of the 
     contribution to the public.
       The primary claim in Tasini involves the NEXIS database, an 
     online database which gives subscribers access to articles 
     from a vast number of periodicals. That access is obtained by 
     displaying the articles over a computer network to 
     subscribers who view them on computer monitors. NEXIS 
     indisputably involves the public display of the authors' 
     works. The other databases involved in the case, which are 
     distributed on CD-ROMs, also (but not always) involve the 
     public display of the works. Because the industry appears to 
     be moving in the direction of a networked environment, CD-ROM 
     distribution is likely to become a less significant means of 
     disseminating information.
       The Copyright Act defines ``display'' of a work as showing 
     a copy of a work either directly or by means of ``any other 
     device or process.'' The databases involved in Tasini clearly 
     involve the display of the authors' works, which are shown to 
     subscribers by means of devices (computers and monitors).
       To display a work ``publicly'' is to display ``to the 
     public, by means of any device or process, whether the 
     members of the public capable of receiving the performance or 
     display receive it in the same place or in separate places 
     and at the same time or at different times.'' The NEXIS 
     database permits individual users either to view the authors' 
     works in different places at different times or 
     simultaneously.
       This conclusion is supported by the legislative history. 
     The House Judiciary Committee Report at the time Sec. 203 was 
     finalized referred to ``sounds or images stored in an 
     information system and capable of being performed or 
     displayed at the initiative of individual members of the 
     public'' as being the type of ``public'' transmission 
     Congress had in mind.
       When Congress established the new public display right in 
     the 1976 Act, it was aware that the display of works over 
     information networks could displace traditional means of 
     reproduction and delivery of copies. The 1965 Supplementary 
     Report of the Register of Copyrights, a key part of the 
     legislative history of the 1976 Act, reported on ``the 
     enormous potential importance of showing, rather than 
     distributing copies as a means of disseminating an author's 
     work'' and ``the implications of information storage and 
     retrieval devices; when linked together by communications 
     satellites or other means,'' they ``could eventually provide 
     libraries and individuals throughout the world with access to 
     a single copy of a work by transmission of electronic 
     images.'' It concluded that in certain areas at least, `` 
     `exhibition' may take over from `reproduction' of `copies' as 
     the means of presenting authors' works to the public.'' The 
     Report also stated that ``in the future, textual or notated 
     works (books, articles, the text of the dialogue and stage 
     directions of a play or pantomime, the notated score of a 
     musical or choreographic composition etc.) may well be given 
     wide public dissemination by exhibition on mass 
     communications devices.''
       When Congress followed the Register's advice and created a 
     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.'' H.R. Rep. No. 89-2237, at 55 
     (1966).
       Thus, Sec. 201(c) cannot be read as permitting publishers 
     to make or authorize the making of public displays of 
     contributions to collective works. Section 201(c) cannot be 
     read as authorizing the conduct at the heart of Tasini.
       The publishers in Tasini assert that because the copyright 
     law is ``media-neutral,'' the Sec. 201(c) privilege 
     necessarily requires that they be permitted to disseminate 
     the authors' articles in an electronic environment. This 
     focus on the ``media-neutrality'' of the Act is misplaced. 
     Although the Act is in many respects media-neutral, e.g., in 
     its definition of ``copies'' in terms of ``any method now 
     known or later developed'' and in Sec. 102's provision that 
     copyright protection subsists in works of authorship fixed in 
     ``any tangible medium of expression,'' the fact remains that 
     the Act enumerates several separate rights of copyright 
     owners, and the public display right is independent of the 
     reproduction and distribution rights. The media-neutral 
     aspects of the Act do not somehow merge the separate 
     exclusive rights of the author.


                     Revisions of Collective Works

       Although Sec. 201(c) provides that publishers may reproduce 
     and distribute a contribution to a collective work in three 
     particular contexts, the publishers claim
       Although ``revision'' is not defined in Title 17, both 
     common sense and the dictionary tell us that a database such 
     as NEXIS, which contains every article published in a 
     multitude of periodicals over a long period of time, is not a 
     revision of today's edition of The New York Times or last 
     week's Sports Illustrated, A ``revision'' is ``a revised 
     version'' and to ``revise'' is ``to make a new, amended, 
     improved, or up-to-date version of'' a work. Although NEXIS 
     may contain all of the articles from today's New York Times, 
     they are merged into a vast database of unrelated individual 
     articles. What makes today's edition of a newspaper or 
     magazine or any other collective work a ``work'' under the 
     copyright law--its selection, coordination and arrangement--
     is destroyed when its contents are disassembled and then 
     merged into a database so gigantic that the original 
     collective work is unrecognizable. As the court of appeals 
     concluded, the resulting database is, at best, a ``new 
     anthology,'' and it was Congress's intent to exclude new 
     anthologies from the scope of the Sec. 201(c) privilege. It 
     is far more than a new, amended, improved or up-to-date 
     version of the original collective work.
       The legislative history of Sec. 201(c) supports this 
     conclusion. It offers, as examples of a revision of a 
     collective work, an evening edition of a newspaper or a later 
     edition of an encyclopedia. These examples retain elements 
     that are consistent and recognizable from the original 
     collective work so that a relationship between the original 
     and the revision is apparent. Unlike NEXIS, they are 
     recognizable as revisions of the originals. But as the Second 
     Circuit noted, all that is left of the original collective 
     works in the databases involved in Tasini are the authors' 
     contributions.
       It is clear that the databases involved in Tasini 
     constitute, in the words of the legislative history, ``new,'' 
     ``entirely different'' or ``other'' works. No elements of 
     arrangement or coordination of the pre-existing materials 
     contained in the databases provide evidence of any similarity 
     or relationship to the original collective works to indicate 
     they are revisions. Additionally, the sheer volume of 
     articles from a multitude of publishers of different 
     collective works obliterates the relationship, or selection, 
     of any particular group of articles that were once published 
     together in any original collective work.


                                remedies

       Although the publishers and their supporters have alleged 
     that significant losses in our national historic record will 
     occur if the Second Circuit's opinion is affirmed, an 
     injunction to remove these contributions from electronic 
     databases is by no means a required remedy in Tasini. 
     Recognizing that freelance contributions have been infringed 
     does not necessarily require that electronic databases be 
     dismantled. Certainly future additions to those databases 
     should be authorized, and many publishers had already started 
     obtaining authorization even before the decision in Tasini,
       It would be more difficult to obtain permission 
     retroactively for past infringements, but the lack of 
     permission should not require issuance of an injunction 
     requiring deletion of the authors' articles. I share the 
     concern that such an injunction would have an adverse impact 
     on scholarship and research. However, the Supreme Court, in 
     Campbell versus Acuff-Rose Music, Inc., and other courts have 
     recognized in the past that sometimes a remedy other than 
     injunctive relief is preferable in copyright cases to protect 
     the public interest. Recognizing authors' rights would not 
     require the district court to issue an injunction when the 
     case is remanded to determine a remedy, and I would hope that 
     the Supreme Court will state that the remedy should be 
     limited to a monetary award that would compensate the authors 
     for the publishers' past and continuing unauthorized uses of 
     their works. Ultimately, the Tasini case should be about how 
     the authors should be compensated for the publishers' 
     unauthorized use of their works, and not about whether the 
     publishers must withdraw those works from their databases.
           Sincerely,
                                                  Marybeth Peters,
                                           Register of Copyrights.

     

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