Interpreting the Copyright Act’s Section 201(c) Revision Privilege with Respect to Electronic Media

I. INTRODUCTION "Both the language and the legislative history of section 201(c) suggest that when in doubt, courts should construe the rights of publishers narrowly rather than broadly in relation to those of authors.... [O]ne must bear in mind that Congress passed the section to enlarge the rights of authors."(1) At the dawn of a new millennium, the United States is in the midst of unprecedented technological change in which our capacity to produce, transmit, and receive information increases daily.(2) The electronic media--(3) including compact disc read-only-memory devices (CD-ROMs) and online services such as those provided by LEXIS/NEXIS (NEXIS) and Westlaw--have redefined the ways in which consumers acquire this information. As communicative technology grows, conflicts over ownership of creative content are inevitable, giving rise to the need to reevaluate the rules of ownership of intellectual property in the modern environment of electronic publishing. For more than a decade, publishers have increasingly made the contents of their newspapers and magazines available through electronic media. However, only recently have freelance(4) authors legally challenged these publishers for allegedly infringing their copyrights in underlying works of authorship.(5) In the absence of express agreements to the contrary, the authors maintain that section 201(c) of the Copyright Act of 1976 (1976 Act)(6) gives publishers only the limited privilege of publishing an article as part of a "particular collective work, any revision of that collective work, and any later collective work in the same series"(7) and that republication in electronic media does not fit within this definition. Publishers disagree and seek a more liberal interpretation of section 201(c). At its core, the issue appears quite simple: What is the definition of "revision," and does it include certain formats of electronic database publishing? Closely related to this issue is another important question: Do certain electronic formats, whether revisions or not, infringe an author's right of reproduction through providing for and encouraging reprinting of individually copyrighted articles? This Note examines the existing bases for interpreting the section 201(c) revision privilege with respect to electronic media, including the Act's plain language, legislative intent, and broader issues of public policy in the realm of copyright. Part II discusses the body of copyright law pertinent to this inquiry, beginning with a succinct and general overview. Part III turns to the landmark case, Tasini v. New York Times,(8) which is the first and only case to interpret section 201(c) with respect to electronic media. In addition, Part III examines the reasoning of both the district court, which held in favor of the publisher defendants, and the Second Circuit Court of Appeals, which recently reversed the decision. Part IV briefly analyzes a district court opinion out of the Second Circuit, Ryan v. Carl Corp.,(9) which is the only other case addressing section 201(c) and the electronic media, albeit in dicta. Part V explores related case law dealing with "new media" in licensing agreements, which offers further insight into the role of public policy in new technology licensing cases. Part VI examines copyright clearinghouses as necessary and effective tools for the administration of collective licensing of freelance articles. Part VII concludes that unauthorized republication of freelance articles in some new media formats, including NEXIS and certain CD-ROMs, infringes on an author's reproduction rights. Such republication is authorized under section 201 (c) only if it retains the publisher's contribution to the collective work, is inherently recognizable as a version of that collective work, and does not sever the individual article from the collective work. This Note ultimately suggests a revision analysis which would effectively support the policy goals of copyright incentive of both the 1976 Act and the U. …