Authors' Rights Decision May Affect Databases

Database vendors, such as Gale and ProQuest, were tight-lipped last month about the possible effects on their products of a recent Supreme Court decision supporting the electronic rights of freelance writers. Although the decision could cause many articles written by freelancers to be removed from large periodicals databases, several vendors claimed that the effect of the decision on their products would probably be minimal. Yet they conceded that the impact of the ruling is still unclear.

ProQuest issued a statement after the ruling saying that it expressly affected two of its CD-ROM products, the New York TimesOnDisc and General Periodicals OnDisc, and that these two products had been withdrawn from the market after an initial ruling by the U.S. Court of Appeals. Most ProQuest online products offer only the most recent 90 days of the New York Times and are unaffected by the ruling. But the ruling may affect an upcoming ProQuest product, ProQuest Historical Newspapers, which would provide PDF images of pre-Internet newspapers, including the Times. Bigchalk vice president Jake Schlumpf (bigchalk is ProQuest's parent company) says it might be necessary for ProQuest to leave out articles from the archive of PDF documents and include only reference numbers to microfiche images of the papers. Including microfiche numbers would, of course, be useful only in libraries where there is access to the microfiche.

The day after the court ruled 7–2 in favor of freelance writers in the New York Times v. Tasini, Gale Group CEO Allen Paschal said in a statement that the impact of Tasini was "far from clear. Our understanding is that the decision will not have an immediate effect onus or our ability to offer our comprehensive online services to libraries and educational institutions." Requests for comment from an EBSCO representative were answered with the company's official statement, which reads, in part, "While articles authored by freelance authors represent a small percentage of the content in our products, we hope to continue to be able to include this valuable content in our databases, and will work with the appropriate parties to accomplish this." In the case, lead plaintiff Jonathan Tasini, president of the National Writers Union, which represents many freelance writers, argued that publishers who had not specifically purchased rights from freelancers to place their work in an electronic database had no right to put them in such a database without the writers' permission. The New York Times, other publishers, and the Lexis-Nexis database had claimed that a digital version of an article that had first appeared in print was merely a "revision." But the Court disagreed, concluding that databases are a "different" medium in which articles stand alone and not in context, as they would in a magazine or newspaper.

When the case was originally filed in 1993, electronic databases were not so pervasive and publishers did not specifically contract with freelance writers for the right to publish their work in an electronic database. The New York Times began contracting for such rights in 1995, and since the ruling, the Times has removed many freelance articles from its database, which in turn is licensed to many commercial database aggregators, such as Gale and ProQuest.