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An imporant copyrght case is working its way through the US Courts: one that will have an impact on digitization of many documents and publications that were originally published on paper and which are still under copyright. You may have heard of this as "Tasini v. New York Times" or as the "freelancer" case, but it should be reviewed by any organization that wishes to make existing copyrighted publications available in digital form. This includes many magazine and book publishers, e-book publishers, and maybe even libraries and archives. At the heart of the matter is the question of whether digital presentations that do not preserve the appearance of the born-on-paper originals can be considered an allowable "revision" of the original for copyright purposes. The court seems to say "no". But maybe searchable-image formats (specifically including Searchable Image PDF) can pass this test. |
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The Complaint
The Tasini case was originally brought forth by six freelance authors who wrote articles for print publishers including the New York Times, Newsday, and Time Inc. In the process of publishing the articles within their paper edititions, these firms sent the material to Lexis/Nexis for inclusion in that firm's text-only document database, which is widely used on a paid subscription basis by business researchers, libraries, law firms, and others. The writers felt that this additional use was an infringement on the copyrights on their original contributions. (An author has an initial copyright interest in any article he writes, and this right is distinct from the publisher's copyright in any assembled "collective work", such as a magazine, newspaper, or anthology.)
The case has gone three rounds now. The publishers won in District Court, the authors prevailed in the US Court of Appeals, and again in the U.S. Supreme Court. Is it over? Nah: there's no settlement, and there's too much still at stake. And the courts seem to be begging someone to ask a particular question, but nobody has........
The "Revision" Defense
The publishers have based their defense on section 201(c) of the Copyright Act, which reads in part
| "Copyright in each separate contribution to a collective work is distinct from the 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 ..., the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing the contribution as part of that collective work, any revision of that collective work, and any later collective work in the same series. (emphasis added.) |
...and you have never seen such debate over what constitues an allowable revision! To make a long story short, Justice Ginsberg (writing for the majority) found the text-only presentation provided by Lexis/Nexis to be something other than a "revision", and thence infringing. Specific reasons included:
- Individual articles are presented in isolation, separated from the informational context of the other articles in the publication.
- The databases offer users access to individual articles, not intact periodicals.
- The text-only version is perceptibly different: the fonts, page formatting, and graphics are not included.
Aftermath: A victory for the proletariat? The end of written history as we know it?
Without a doubt, Tasini is a case with profound implications. You can find a remarkable range of opinions being offered as to what it all means. So broad a range, in fact, that one wonders if all of these folks are talking about the same case. Yes, reasonable people can come to different conclusions in such a matter. The actual Opinions of the Court, though, are the "reality of the moment" by which future actions can best be planned. They are the concrete basis for future progress on the matter.
Having said that, though, it's important to look at what the Supreme Court did not say in these opinions, in addition to what it did say.
Did the court say that the print publishers
necessarily have to pay the authors? No.
Did the court say that all styles of online republication are infringing? No.
Did the court say that for copyright purposes, a text-only database-driven republication
is an inadequate "revision" or "surrogate" for the original document? Yes.
So, what question went begging?
Would "Full Fidelity" presentation constitute an allowable revision?
If a text-only presentation does not constitute a valid "revision", perhaps we need to be using presentation methods that hew more closely to the appearance and structure of the original paper works. Advances in commercially available tools and services make this eminently doable. Anyone with a nodding acquaintance with PDF technology will recognize it as a possibilty. For publishers who still have digital source files available, conversion to the PDF "Formatted Text and Graphics" dialect (previously "PDF Normal" in Acrobat Capture nomenclature) will do fine, and be widely readable.
In digitizing documents for legal use, it has long been a requirement to preserve the exact image of the original document. (And we surely are in a legally sensitive area with documents subject to Tasini claims!) Perhaps publishers are better served by "searchable image" formats. And for all of the years of back-catalog publications for which we have no digital originals, a searchable-image presentation is the most economical (and 100% visually accurate) representation available today.
Two specific vehicles are the "Searchable Image" dialect of Adobe's popular PDF format, and the emergent DjVu format developed by AT&T Labs and licensed by LizardTech. Both of these allow the complete text of the original document to be searched and analyzed, preserve the visual appearance and informational context of the original paper publication, and allow efficient distribution over the internet.
Adobe's PDF format is so far the more robust and widespread mechanism. Adobe itself has not provided the means to catalog, search, and distribute large quantities of PDF data over the internet, and reportedly cannot because of contractual restrictions. Third party developers have stepped in to supply such tools, and some service organizations (such as Abbott Digital) are fully prepared to use those tools to convert publications and host the resulting collections.
The DjVu format is not as mature, with several key delivery elements still in development. It does hold great promise for the future, offering vastly superior image-layer compression (with resulting smaller file size and delivery speed) as well as the full-text- search capability also offered by PDF. Other emergent formats do provide similar high compression, but do not allow searchability.
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