Spring 1995
Legal and ethical issues concerning fair use and distribution of original work obtained through the internet was the topic of the "Who Owns What" panel at San Francisco State University's Way New Journalism conference on April 8th.
About 40 reporters, writers, editors, photographers, journalism students and educators met for the panel moderated by Don Menn, editor-in-chief of Multimedia World magazine.
The advent of the internet and online services has reshaped the entire publishing industry in the past five years. The digital revolution, Menn said, raises a host of new questions about the fair use of "intellectual property" such as magazine and newspaper articles, graphic artwork, photographs and even personal letters and diaries.
Menn said he does not know exactly how intellectual property available electronically will be protected by existing copyright laws since it is much harder to track who is using the information and what it's being used for. Online copyright is a "largely uncharted area," he said.
"Once you put something on the internet," he said, "it goes everywhere instantly without any audit." However, several companies have the ability to fact-track who retrieves what and from which source. The Newshare Corporation in Williamstown, Mass., calls itself "the internet's first news broker" and offers tracking capabilities for its clients.
Menn said with today's computer technology, anyone with access to the internet can download a photograph or artwork and manipulate it enough to make it into a whole other work, making it hard to determine ownership in many cases.
National Writers Union assistant director Irvine Muchnick said the growth in the electronic database market has not been good for many writers.
"Database companies and publishers are making money from electronic resale of articles", he said, "but the revenues are often not going to the original creators." In an effort to call attention to the issue of electronic rights for journalists, Muchnick and other NWU members began a campaign called Operation Magazine Index (OMI). Since launching OMI a year ago, Muchnick said more than 100 writers have joined the cause, including Nicholson Baker, a New York Times columnist, and Molly Ivins, best-selling author and syndicated columnist.
In 1993, NWU president Jonathan Tasini and ten other NWU members filed a lawsuit in New York City federal court. The lawsuit claims database companies and publishing conglomerates are committing copyright infringement by reselling and redistributing original writings through computer networks.
Defendants include the New York Times publishing company and the Atlanta Monthly. The lawsuit is still pending, but Muchnick said its outcome could "reshape the future of publishing."
Subscribers to online information services such as Compuserve can download newspaper and magazine articles of their choice for a fee. Information Access Company (IAC) in Foster City supplies the database service to Compuserve and the Dow Jones News Retrieval service, Muchnick said, but pays no royalties to writers when their articles are resold.
In November 1994, IAC was sold by Ziff Communications to the Thomson Corporation of Canada for $465 million. Executives at IAC have refused to meet with NWU members. IAC, Muchnick said, claims to have licensing agreements with magazine publishers. But the NWU argues that the agreements are illegitimate, because most writers usually only give first North American print rights to their publishers.
"These huge corporations," Muchnick said, "are grabbing all the rights and asking questions later. The issue is about what is right and wrong. It is wrong to take away royalties from creators of a work."
Nevertheless, Muchnick said NWU executives are working with some database companies in an effort to hammer out a compromise plan for sharing royalties. "Eventually this problem has to be solved by negotiation. There is no way we can anticipate every legal contingency that comes up," he said.
Muchnick also said NWU executive director Maria Pallante was working on a royalty-sharing plan with the Denver-based CARL Corporation, a major electronic database company. The talks are still ongoing, he said.
But since the lawsuit was filed in federal court, Muchnick said more publishers are drafting contracts requiring writers to sign away all copyrights to their work, including redistribution rights.
Menn said he recently refused to endorse a new contract that would require his writers at Multimedia World to surrender all copyrights to their work.
"I don't approve of those contracts," he said. "I refused to push them to the writers. I think it is wrong and my publisher knows that."
Menn said this latest trend in magazine publishing is reason for alarm. "It means that more and more writers and photographers are becoming freelancers whether they like it or not," he said.
But he also pointed out the battle over electronic copyrights will be hard-fought since publishers will not be easily persuaded to share royalties.
"The publishers' position is usually that they are not making much money, and they are taking a risk with writers every time they sign a deal," he said. "They are using the 'we are losing money' argument as a way to bamboozle writers."
Menn said he doesn't expect the criteria concerning fair use of original work to change dramatically just because information is obtained electronically. Traditionally, courts have used a criteria of fair use which considers the purpose of use; the nature of the original work; how much material is used; and, most importantly, Menn said, the market effect of the material used.
If using someone else's work creates a new market, it is more likely to be considered fair use, he said.
But panelist Steve Kaus, a media lawyer with Cooper, White and Cooper, emphasized that because the use and redistribution of material obtained from the internet is still a relatively new area of copyright law, it will take some time to iron out exactly how the traditional criteria for fair use will be applied.
"Does putting something online mean it is automatically published? I don't think we know that yet," he said.