Journalistic copyright in the US and the UK

 The US Supreme Court has recently thrown its support behind freelance journalists in proceedings brought by The New York Times and other publishers against those writers in New York Times v Tasini et al.

The authors had produced articles for various publications which had originally been included in print newspapers and magazines. Since the agreements under which the articles were commissioned dated back many years, none dealt with the question of whether the same articles could be published online or through electronic databases. They were republished in these formats without separate permission being sought for the electronic republication.

The publishers claimed that they had the right to reproduce the articles under US federal copyright law. They relied upon the provisions regarding the privilege accorded to the owners of "collective work" copyright, claiming that what they had done amounted to a revision of the original collective work and was therefore permissible. They argued that electronic reproduction was no different from reproduction on microfiche. The Supreme Court disagreed.

It drew a distinction between databases and microfiche. Crucially, a microfiche copy would preserve the periodical intact. It would allow the reader to see how one article fitted in to the whole. It was simply the conversion from one medium to another. By contrast, databases allowed the articles to be accessed separately from the original context in which they appeared. Consequently, the publishers could not rely on the collective work argument.

The upshot is that, if the decision stands, the publishers will have to go back to the authors and seek their consent to the inclusion of their works online. It may give authors the opportunity to ensure that they receive appropriate remuneration from this new commercial exploitation of their works. "May" because the publishers have indicated that they intend to lobby Congress to change the law.

The issue is likely to run and run and, while the UK and US laws are different, the same question of the extent of the grant of rights could equally arise in this jurisdiction.

In the UK, the House of Lords has also recently grappled with copyright issues in newspaper articles in Newspaper Licensing Agency Limited v Marks & Spencer plc. This action concerned the right to copy cuttings from newspapers for internal distribution within Marks & Spencer. While the retailers had a licence from the NLA for the initial copying, the additional reproduction for circulation fell outside the terms of the licence.

The NLA claimed infringement of its copyright in the typographical arrangements of the published editions. It failed. The Lords concluded that the typographical arrangement of the newspapers as a whole was protected, not individual articles, and insufficient material had been copied from the whole publications such that copyright was not infringed.

What is not clear is why the NLA did not rely on copyright in the individual articles themselves. Perhaps such an approach was considered too messy and too time consuming. If the NLA wants to stop the activities of Marks & Spencer, and presumably others, it may now be the way to go.

Michele Boote is a partner at Theodore Goddard IT/IP Group

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