Feb
27
National Geographic and Tasini
Posted by Dirk Avery at 8:47 pm under Copyright, Litigation.
National Geographic has been attempting for nearly a decade to release a CD-ROM version of the magazine but has been thwarted by copyright issues. The freelance contributors claim that a digital version is a new work and would infringe their copyrights. NG, on the other hand, led by Ken Starr of Clinton-fame, argues that it is a mere revision.
Update: Procedurally, the current 11th Circuit en banc case results from freelancers appealing a June 2007 11th Circuit loss. The 2nd Circuit has also found for NG so reversal would restore a “long-standing” split.
Daily Report’s Robin McDonald has the story:
Birch noted pointedly that the National Geographic had secured a new copyright for the CD-ROM library, called “The Complete National Geographic”—an indication that the National Geographic Society considered it to be a new work, not a reprint.
Starr responded, “It’s a new copyrightable element, which is what makes this a revision.”
The argument that the CD-ROM library is no different than microfilm has been one of the National Geographic’s key arguments in the case because of language contained in the Supreme Court’s Tasini decision.
In that case, Justice Ruth Bader Ginsburg wrote for a 7-2 majority that electronic databases, contrary to publishers’ assertions, were not simply revised editions of previously published works and, as such, infringed writer copyrights. And federal copyright law allows the freelancer to benefit from new demands for articles either “standing alone” (in electronic databases) or as part of a new collection.
In Tasini, the court rejected that notion that digital databases were akin to microfilm and microfiche, writing that “The publishers’ analogy between the databases and microfilm and microfiche is wanting.”
But publishers latched on to Ginsburg’s subsequent statement, “In the databases, unlike microfilm, articles appear disconnected from their original context. Unlike the conversion of newsprint to microfilm, the transfer of articles to the databases does not represent a mere conversion of intact periodicals (or revisions of periodicals) from one medium to another. The databases offer users individual articles, not intact periodicals.”
It was that dicta on which Birch’s original opinion in Greenberg was overturned and on which the National Geographic has rested its current case.